UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  SUMMARY 


OF 


TORTS 


FRANK  A.  ERWIN 

Professor  of  Law  in  Ntw  York  University 


SECOND  EDITION 
REVISED  AND  ENLARGED 


LESLIE  J.   TOMPKINS 

31  WAVERLY  PLACE,  NEW  YORK  CITY 

1906 


COPYRIGHT,  1899, 1906^ 

BY 

FRANK  A.  ERWIN 


CONTENTS. 


Introduction. 

Page. 

Injuries 1 

Difficulty  of  defining  a  tort 1 

Some  definitions 2 

Analytical  classification  of  the  grounds  of  liability 2 

Tort,  contract  and  crime  distinguished 3 

Proof  in  civil  and  in  criminal  cases 4 

Tort  not  merged  in  felony 4 

Some  maxims 7 

Ubi  jus,   ihi  remedium 7 

Injuria  sine  damno 7 

Damnum  absque  injuria 7 

Sic  utere  tuo  ut  alienum  non  laedas 8 

In  jure  non  remota  cau^a  sed  proxima  spectatur 9 

Nervous  shock  in  cases  of  willful  tort 11 

Nervous  shock  in  actions  for  negligence 11 

Liability  for  fires  negligently  set 15' 

Release  of  one  of  two  joint  tort  feasors 16 

When  release  contains  a  reservation  of  a  right  to  sue 16 

No  contribution  among  joint  tort  feasors 17 

Reason  for  the  rule 17 

Limitation  of  the  rule 17 

Three  main  heads  of  duty 18 

Liability  in  tort 19 

Infants 19 

Child  vs.  parent  for  personal  injuries 21 

Reason  for  the  denial  of  a  oause  of  action 21 

Lunatics 21 

Liability  of  infants  and  lunatics  for  negligence 22 

Married  women 23 

Right  of  married  women  to  recover  for  diminished  earning 

capacity 24 

Husband  or  wife  is.  the  other  for  personal  injuries 24 

Corporations 28 

State  or  general  government 31 

Municipal  corporations 32 

Charitable  corporations   34 

Actio  personalis  moritur  c^ini  persona 37 

The  rule  does  not  extend  to  civil  death 38 

Statutory  modifications  of  the  rule :   in  England 38 

Statutory  modifications  of  the  rule:   in  New  York 39 

Provisions  of  N.  Y.  Code  of  Civil  Procedure  in  actions  for 

death   43 

Distribution  of  damages 44 

No  double  liability 44 

Injuries  to  person  and  to  property,  resulting  from  same 

tortious  act,  constitute  different  causes  of  action 45 

When  beneficiaries  are  non-resident  aliens 48 

"  Compensation  for  the  pecunian,-  injuries  " 48 


iv  Contents. 

Page. 

Funeral  expenses ^^ 

Recovery  not  limited  to  minority 50 

The  cause  of  action  abates  with  the  death  of  the  wrong- 


doer 


51 


Survival  of  action  after  death  of  sole  administrator  and 

next  of  kin 52 

Action  for  personal  injury  does  not  abate  after  verdict.  ...  52 

Principal  and  agent ^^ 

Master   and  servant ^^ 

Master  and  servant:  the  relation 54 

Master's  liability  to  third  persons 54 

Ma-ster  as  a  common  carrier 54 

Provocation  bv  passenger 55 

Relation  must' exist  at  time  of  commission  of  wrongful  act.  56 

Reasons  for  the  master's   liability 57 

Independent  contractor 58 

Test  of  independent  contractor 59 

Master's  duty  to  servant 59 

Servant's  responsibility  to  master 60 

Servant's  liability  to  third  persons 60 

Modification  of  the  doctrine  of  respondeat  superior 61 

Reasons  for  the  rule "1 

Who  are  fellow-servants 63 

Rank  or  grade  immaterial 64 

Must  be  under  control  of  one  master 65 

Vice-principals  not  fellow-servants 65 

Negligence  of  master  and  fellow-servant  concurring 66 

The  employers'  liability  act  (N.  Y.) 67 

Assault  and  Battery. 

Security  of  person ^^ 

Assault  defined J^ 

Intent '  * 

Essential  elements '  * 

Threats '  * 

Assault  included  in  battery /"* 

Battery  defined f  9 

Contact i^ 

Use  of  force  or  violence  when  not  unlawful <  6 


Consent 


77 


Defense  of  person ^^ 

Must  person  assaulted  retreat  if  possible SO 

Defense  of  property ^^ 

Right  of  recovery  by  party  using  excessive  force 82 

Provocation :  effect  upon  damages •*<4 

False  Imprisonment. 

Freedom   of   person °^ 

False  imprisonment  defined o6 

Imjjrisonment   must   be   circumscribing »6 

Essential  elements •  •  ;  •  •  8*' 

Termination     of     criminal     proceeding    not     a     condition 

precedent °' 


Contents.  v 

Page. 

Justification ^^ 

Arrests  with  warrant 88 

Void  and  irregular  process  distinguished 88 

Erroneous  process 89 

Arrests  without  a  warrant :   statutory &0 

Arrests  without  a  warrant :   common  law 92 

Malice  and  want  of  probable  cause 93 

Injuries  in  Family  Relations. 

Fiction  of  service •  •  •  •  95 

Negligent  injury  to  child:  right  to  recover  for  loss  of  services.  95 

Negligent  injury  to  wife:  right  to  recover  for  loss  of  services.  .  96 

Instantaneous  death  of  wife  or  child:  no  recovery  for  loss 

of  services "' 

Reason  of  the  rule 97 

An   illogical  exception 98 

Loss  of  service  and  of  society  distinguished 99 

Contributory  negligence  of  wife  or  child 100 

Seduction  defined 101 

Theory  of  action  for  seduction  and  measure  of  damages.  .  .  101 

Right  to  command  services 103 

Adult  daughter 103 

Action  for  seduction  do^^s  not  abate  by  death  of  father.  .  .  103 

No  right  of  action  by  seduced  party 103 

Seduction   under   promise   of  marriage 10.5 

Measure  of  damages  for  breach  of  marriage  contract  unac- 
companied by  .seduction 106 

Measure  of  damages  for  breach  of  marriage  contract  accom- 
panied by  seduction 107 

Criminal  conversation 108 


Libel  and  Slander. 

Right  to  reputation 109 

Violation  of  the  right J 10 

Slander  and  libel  defined 1 10 

Statutory  definition  of  libel HO 

No  civil  action  for  maligning  the  memory  of  the  dead.  ...  110 

Essential  elements  in  defamation 110 

Tlie  law  distinguishes  between  libel  and  slander Ill 

Reputation  in  criminal  and  in  civil  actions 112 

When    evidence    of    good   reputation   is   admitted   in   civil 

actions ;  ••  H^ 

When    evidence    of    bad    reputation    is    admitted    in    civil 


actions 


113 


Language  actionable,  and  not  actionable,  per  se 114 

Some  instances  of  special  damage 115 

Special  damage  in  cases  actionable  per  se 115 

Imputation  of  iinchastity  actionable  per  se  by  statute.  ...  116 

Liability  for  publication  in  libel  and  in  slander 116 

Repetition  of  defnmatinn H^ 

Repeating  defamation  with  the  name  of  the  author 117 

Must  defamation  be  malicious 118 


Vi  CoNTEiSTTS. 

Page^ 

Language  of  the  publication 1  IB 

Intent  of  speaker 119 

Innuendo 119 

Averment,  colloquium  and  innuendo 120 

Comment  and  criticism 121 

Comment  and  report  distinguished 121 

Liberty  of  the  press 121 

Truth  as  a  defense 122 

Criminal  actions 122 

Civil  actions 123 

Justification  must  be  as  broad  as  the  charge 123 

Mitigating  circumstances 123 

Mitigation  extends  only  to  punitive  damages 124 

Privilege  as  a  defense 124 

Qualified   privilege.     Malice  material 124 

Moral  duty  to  communicate 125 

Eeports  of  judicial  and  legislative  proceedings 127 

Malice,  implied  and  express,  in  the  law  of  defamation ....  128 
Is  the  falsity  of  the  libel  evidence  of  malice  sufficient  to 

sup{K>rt  punitive  damages 129 

Privilege  a  question  of   law.    Express  malice   a  question 

of  fact 130 

Absolute  privilege.     Malice  immaterial 131 

Deceit. 

Nature  of  wrong 132 

Deceit  defined 133 

A  common-law  action 133 

Complication  with  contract 133 

Essential  elements 134 

False  representations  of  material  facts 134 

Silence  and  artifice 136 

Defendant's  knowledge  of  falsity.     Intention 136 

Plaintifl's  reliance  and  action  upon  representations  to  his 

damage 138 

Who  may  rely  on  representations 139 

Malicious  Prosecution. 

Essential  elements 140 

Termination 140 

Reason   of  the  rule 141 

Termination :   nolle  prosequi 142 

Termination :   appeal  from  judgment 142 

What  is  probable  cause 143 

When  facts  must  be  known 144 

Mere  belief 144 

Conviction 144 

Acquittal  or  discharge 145 

Advice  of  magistrate 147 

Advice  of  counsel 147 

Granting   a   temporary   injunction 148 

Malice ; 148 

Malice,  but  not  want  of  probable  cause,  may  be  inferred.  .  .  148 

Malice  and  want  of  probable  cause  must  concur 148 

Probable  cause  a  question  of  law.     Malice  a  question  of 

fact 149 


Contents,  vii 

Page. 

Abuse  of  process 150 

Termination  not  a  condition  precedent 151 

The  complaint  in  malicious  prosecution  and   in  abuse  of 

process 152 

Abuse  of  process  distinguished  from  malicious  prosecution.  .  .  .  152 

Malicious  prosecution  in  civil  actions 153 

Distinction  between  malicious  prosecution  and  false  imprison- 
ment    156 

Trespass. 

Duty  regarding  property 156 

Common-law  rights  and  remedies  possessory 156 

Trespass  defined 157 

Trespass   upon   land 158 

Constructive  possession     158 

The  enclosure 159 

Justifiable  entry 159 

Not  an  action  to  try  title IGl 

Trespass  «&  initio 102 

Waste 1G3 

Trespass  to  goods 164 

Trespass  to  the  person 164 

Conversion. 

Defined 165 

Intention 165 

Exercise  of  dominion 166 

For  whom  dominion  exercised,  is  immaterial 166 

Acts  not  implying  assertion  of  title 166 

Asportation 167 

Distinguished  from  trespass 168 

Ancient  modes  of  redress  for  loss  of  goods 168 

Replevin 168 

Replevin  in  the  cepit  and  in  the  detinet 169 

Replevin  distinguished   from  trespass 170 

Replevin  regulated  by  statute 171 

Detinue 171 

Trover  and  conversion 172 

Requisites  to  maintain  conversion 172 

Possession  and  property  right 173 

Demand  and  refusal 174 

Remedies 174 

Measure  of  damages 174 

Nuisance. 

Defined 175 

Distinguished  from  trespass 176 

What  constitutes  a  nuisance 176 

Injury  to  property  and  physical  discomfort  distinguished.  ...  177 

Standard  for  bodily  discomfort 178 

Classification 179 

Public  nuisance 179 

Private  nuisance 180 

A  public  nuisance  may  also  be  a  private  nuisance 181 


viii  Contents. 

Page. 

Continuing  nuisance 182 

Elevated  railroad  damage  cases 183 

Parties 184 

Remedies 184 

Abatement 185 

Theory  of  abatement 185 

Effect  of  abatement  upon  action 186 

Abatement  a  dangerous  remedy 187 

Injunction 187 

Damages 189 

Negligence. 

Defined 190 

Essential  elements 190 

Duty  owing 191 

Purpose  or  intent 191 

Care  and  caution 192 

Standard  of  duty 194 

The   standard   man 194 

Rule  as  to  carriers  of  passengers 195 

Exemption  contracts  by  common  carriers 199 

Facts   and   law 199 

Presumption  of  negligence 201 

Contributory  negligence 203 

Defined 203 

Reason  for  the  rule 204 

Care  towards  infirm,  aged  and  young 204 

Care  to  be  exercised  by  such  persons 204 

Doctrine   of  identification 204 

Imputation  of  negligence  to  persons  non  »ui  juris 208 

Where  rule  prevails 208 

WTiere  rule  does  not  prevail 208 

The  New  York  rule 209 

Criticism  of  the  rule 210 

Who  are  non  sui  jiiria 211 

Contributory  negligence:   burden  of  proof  on  plaintiff 212 

Contributory  negligence:   burden  of  proof  on  defendant 212 

Jurisdictions  placing  burden  of  proof  on  plaintiff 213 

Jurisdictions  placing  burden  of  proof  on  defendant 214 


INTRODUCTION 


Injuries. — "All  acts  or  omissions,  whicli  tlie  law  recog- 
nizes as  the  subjects  of  its  provision  and  application,  are 
either  contracts,  torts,  or  crimes;  the  first  being  agreements, 
express  or  implied ;  the  second,  injuries  of  omission  or  com- 
mission, done  to  individuals ;  and  the  third,  injuries  done  to 
the  public  or  the  State."    Hilliard  on  Torts  (3d  ed.),  1. 

Injuries  may  be  the  result  of  "  nonfeasance  .  .  .  the 
omission  of  an  act  which  a  person  ought  to  do ;  misfeasance 
.  .  .  the  improper  doing  of  an  act  which  a  person  might 
lawfully  do ;  and  malfeasance  ...  the  doing  of  an  act 
which  a  person  ought  not  to  do  at  all."  Bell  v.  Josselyn,  3 
Gray,  309,  311. 

Difficulty  of  defining  a  tort. — "  To  attempt  a  definition 
which  would  tell  its  own  story  on  its  face  would  be  hopeless. 
Indeed  no  definition,  helped  out  however  much  by  explana- 
tion, can  convey  an  adequate  notion  of  the  meaning  of  the 
word ;  nothing  short  of  careful  study  of  the  specific  torts  of 
the  law  will  answer,  for  there  is  no  such  thing  as  a  typical 
tort,  an  actual  tort,  that  is  to  say,  which  contains  all  the 
elements  entering  into  the  rest.  One  tort  is  as  perfect  as 
another;  and  each  tort  differs  from  the  others  in  its  legal 
constituents."     Bigelow  on  Torts   (7th  ed.),  29. 

"  We  have  been  unable  to  find  any  accurate  and  perfect 
definition  of  a  tort.  .  .  .  The  text-writers  either  avoid 
a  definition  entirely  (Addison  on  Torts),  or  frame  one  plainly 
imperfect  (2  Bouvier's  Law  Diet.  600),  or  depend  upon  one 
which  they  concede  to  be  inaccurate,  but  hold  sufficient  for 
judicial  purposes.  (Cooley  on  Torts,  3,  note  1;  Moak's 
Underbill,  4;  1  Hilliard  on  Torts,  1.)"  Rich  v.  N.  Y.  Cent 
&  Hud.  R.  R.  R.  Co.,  87  K  Y.  382,  390.) 


2  lNTIiOL>LCTION. 

Some  definitions. — ^'A  tort  may  be  said  to  be,  a  breach  of 
duty  established  by  municipal  law  for  which  a  suit  for  dam- 
ages can  be  maintained/'     Bigelow  on  Torts  (7th  ed.),  30. 

"  To  constitute  a  tort  two  things  mnst  concur :  a  wrongful 
act  committed  by  the  defendant  and  actual  or  legal  damage  to 
the  plaintiff."     Addison  on  Torts,  1, 

The  wrongful  act  or  omission  is  called  injuria;  actual  or 
legal  damage  is  called  damnum. 

Mr.  F.  H.  Cooke,  in  an  article  entitled  "A  Proposed  New 
Definition  of  a  Tort"  (Harvard  Law  Review,  XIL,  335), 
defines  a  tort  as  "an  act  or  omission,  not  a  mere  breach  of 
contract,  and  producing  injury  to  another,  in  the  absence  of 
any  existing  lawful  relation  of  which  such  act  or  omission  is 
a  natural  outgrowth  or  incident." 

Analytical   classification   of   the   grounds   of   liability. — 

**  Every  tort  is  an  act  or  omission  (not  being  merely  the 
breach  of  a  duty  arising  out  cf  a  personal  relation,  or  under- 
taken by  contract)  v;hich  is  related  in  one  of  the  following 
ways  to  harm  (including  interference  with  an  absolute  right, 
whether  there  be  measurable  actual  damage  or  not),  suffered 
by  a  determinate  person : 

"(a)  It  may  be  an  act  which,  Avithout  lawful  justification 
or  excuse,  is  intended  by  the  agent  to  cause  harm,  and  does 
cause  the  harm  complained  of, 

"(b)  It  may  be  an  act  in  itself  contrary  to  law,  or  an  omis- 
sion of  specific  legal  duty,  which  causes  harm  not  intended  by 
the  person  so  acting  or  omitting. 

"(c)  It  may  be  an  act  violating  an  absolute  right  (espe- 
cially rights  of  possession  or  property),  and  treated  as  wrong- 
ful without  regard  to  the   actor's   intention  or  knowledge. 

"(d)  It  may  be  an  act  or  omission  causing  harm  which  the 
person  so  acting  or  omitting  did  not  intend  to  cause,  but 
might  and  should  with  due  diligence  have  foreseen  and  pre- 
vented. 

"(e)  It  may,  in  special  cases,  consist  merely  in  not  avoid- 
ing or  preventing  harm  which  the  party  was  bound,  abso- 


Inteoduction.  O 

lutely  or  within  limits,  to  avoid  or  prevent."     Pollock  on 
Torts  (7th  ed.),  19. 

Tort,  contract  and  crime  distinguished. — "  In  cases  of 
tort  the  duty  that  has  been  violated  is  general.  It  is  owed 
either  to  all  our  fellow-subjects,  or  to  some  considerable  class 
of  them,  and  it  is  fixed  by  the  law  and  the  law  alone.  Here 
lies  the  difference  between  civil  wrongs,  properly  so  called, 
and  breaches  of  contract.  .  .  .  But  breach  of  contract,  will- 
ful or  not,  is  the  breach  of  duties  which  the  parties  have  fixed 
for  themselves.  Duties  under  a  contract  may  have  to  be  in- 
terpreted or  supplemented  by  artificial  rules  of  law,  but  they 
cannot  be  superseded  while  there  is  any  contract  in  being. 
The  duties  broken  by  the  commission  of  civil  wrongs  are 
fixed  by  law,  and  independent  of  the  will  of  the  parties ;  and 
this  is  so  even  where  they  arise  out  of  circumstances  in  which 
the  responsible  party's  owti  act  has  placed  him."  Pollock 
on  Torts  (7th  ed.),  2. 

"  Between  actions  plainly  ex  contractu  and  those  as  clearly 
ex  delicto  there  exists  what  has  been  termed  a  border-land, 
v/here  the  lines  of  distinction  are  shadowy  and  obscure,  and 
the  tort  and  the  contract  so  approach  each  other,  and  become 
60  nearly  coincident  as  to  make  their  practical  separation 
somewhat  difficult.  .  .  .  And  yet,  it  is  conceded  that 
a  tort  may  grow  out  of,  or  make  part  of,  or  be  coincident  with 
a  contract  (2  Bouvier),  and  that  precisely  the  same  state  of 
facts,  between  the  same  parties,  may  admit  of  an  action  either 
ex  contractu  or  ex  delicto.  (Cooley  on  Torts,  90.)  In  such 
cases  the  tort  is  dependent  upon,  while  at  the  same  time  inde- 
pendent of  contract;  for  if  the  latter  imposes  a  legal  duty 
upon  a  person,  the  neglect  of  that  duty  may  constitute  a  tort 

founded  upon  a  contract.     (1  Addison  on  Torts,  13. ) 

*  -x-  *  *  *  *  * 

"  It  may  be  granted  that  an  omission  to  perform  a  con- 
tract obligation  is  never  a  tort,  unless  that  omission  is  also  an 
omission  of  a  legal  duty.  But  such  legal  duty  may  arise,  not 
merely  out  of  certain  relations  of  trust  and  confidence,  in- 
herent  in  the  nature   of  the   contract   itself,     .     .     .  ,  but 


4  Introduction. 

may  spring  from  extraneous  circumstances,  not  constituting 
elements  of  the  contract  as  such,  although  connected  with 
and  dependent  upon  it,  and  born  of  that  -wider  range  of  legal 
duty  which  is  due  from  every  man  to  his  fellow,  to  respect 
his  rights  of  property  and  person,  and  refrain  from  invading 
them  by  force  or  fraud."  Rich  v.  N.  Y.  Cent.  &  Ilud.  R. 
R.  R.  Co.,  87  K  Y.  382,  390  and  398. 

"  The  difference  betAveen  Crimes  and  Civil  Injuries  is  not 
to  be  sought  for  in  a  supposed  difference  between  their  ten- 
dencies, but  in  the  difference  between  the  modes  wherein 
they  are  respectively  pursued,  or  wherein  the  sanction  is  ap- 
plied in  the  two  cases.  An  offence  which  is  pursued  at  the 
discretion  of  the  injured  party  or  his  representative  is  a  Civil 
Injury.  An  offence  which  is  pursued  by  the  Sovereign,  or  by 
the  subordinates  of  the  Sovereign,  is  a  Crime."  Austin, 
Juris.  Lect.,  XVII. 

Proof  in  civil  and  in  criminal  cases. —  "  We  deem  it  very 
important  that  the  strict  rule  of  evidence,  applicable  to  the 
burden  of  proof  in  criminal  cases,  should  not  be  extended  to 
civil  actions  for  the  recovery  of  damages,  where  the  defendant 
is  charged,  incidentally,  with  arson,  embezzlement  or  any 
other  crime. 

"  Wlien  life  or  liberty  is  involved  the  proof  must  exclude 
\  reasonable  doubt,  but  in  a  civil  action,  where  a  recovery  of 
!  damages  is  sought  against  the  wrongdoer,  the  plaintiff  is  only 
\  required  to  sustain  his  case  by  a  preponderance  of  evidence." 
1     Kurz  V.  Doerr,  180  ^.  Y.  88,  92. 

«jty»  .  Tort  not  merged  in  felony. —  "  Where  the  violation  of  a 
*'"''*^  ^^^^''^'^ right  admits  of  a  civil  and  also  of  a  criminal  prosecution,  the 
'""'"^^  one  is  not  merged  in  the  other."     N.  Y.  Code  Civ.  Pro., 

§  1899. 

In  some  cases,  the  same  wrongful  act  may  constitute  a 
crime  as  well  as  a  tort.  Instances  are  assault  and  battery, 
libel,  false  imprisonment,  public  nuisance,  negligence  when 


Introduction.  5 

it  causes  homicide,  conversion  when  it  involves  intent  to  steal 
(larceny),  and  fraud  if  it  amounts  to  the  offence  of  forgery, 
or  of  obtaining  goods  under  false  pretences. 

At  common  law,  if  the  wrongful  act  amounted  to  a  felony, 
the  aggrieved  party  could  not  maintain  a  civil  action  until 
public  justice  had  been  satisfied.  In  such  case,  the  lesser 
offence  was  said  to  be  merged  in  the  greater,  and  the  civil 
action  was  postponed. 

"  It  is  a  principle  of  law,  .  .  .  ,  that  where  any  one 
in  the  perpetration  of  a  public  wrong  commits  an  injury 
upon  another  J  peculiar  to  the  injured  party,  in  his  individual 
capacity,  and  not  simply  as  a  member  of  the  community,  the 
party  injured  may  sustain  an  action  in  his  individual 
capacity  for  the  damages  which  he  may  have  sustained.  This 
was  always  the  rule  in  cases  of  misdemeanor,  but  it  did  not 
at  common  law  extend  to  felonies,  as  the  private  wrong  was 
merged  in  the  felony.  But  by  a  provision  of  our  new  code, 
(§  7),  when  the  violation  of  a  right  admits  of  both  a  civil 
and  a  criminal  remedy,  the  right  to  prosecute  the  one  is  not 
merged  in  the  other."  Smith  v.  Lochwood,  13  Barb.  209, 
217. 

"  Such  a  doctrine  [that  the  private  wrong  was  merged  in 
the  felony]  can  be  found  in  some  of  the  old  English  cases, 
applying  to  certain  conditions,  circumstances,  and  the  exist- 
ence of  institutions,  known  in  England,  but  not  known  in 
this  country;  and  though  there  are  cases  to  be  found  here, 
which  seem  to  suppose  it  to  be  the  common  law,  it  never  was 
adopted  in  this  State.  Perhaps  it  was  because  its  adoption 
was  regarded  as  being  left  in  doubt,  that,  as  long  ago  as  1801, 
the  legislature  of  this  State  expressly  enacted  that  persons 
who  should  be  aggrieved  by  any  felony  might  maintain  his 
or  her  action  in  like  manner  as  if  it  had  not  been  committed 
feloniously;  and  in  no  case  should  the  right  of  action  be 
merged  in  the  felony,  or  in  any  manner  affected  thereby. 
(Sess.  Laws,  1801,  Greenleafs  ed.,  chap.  60,  §  19,  p.  264.) 
This  statute  has  been  in  force  ever  since,  and  is  now  a  part 
of  the  Kevised  Statutes.     (Vol.  2,  p.  292,  §  2.)"    Newton  v. 


6  Introduction. 

Porter,  5  Lansing,  416,  423.     See,  also,  Mairs  v.  B.  &  0. 
R.  R.  Co.,  175  K  Y.  409,  413. 

"  The  doctrine,  that  all  civil  remedies  in  favor  of  a  party 
injured  hj  a  felony  are,  as  it  is  said  in  the  earlier  authorities, 
merged  in  the  higher  offence  against  society  and  public  jus- 
tice, or,  according  to  more  recent  cases,  suspended  until  after 
the  termination  of  a  criminal  prosecution  against  the 
offender,  is  the  well-settled  rule  of  law  in  England  at  this 
day,  and  seems  to  have  had  its  origin  there  at  a  period  long 
anterior  to  the  settlement  of  this  country  by  our  English 
ancestors. 

******* 

"  The  source,  whence  the  doctrine  took  its  rise  in  England, 
is  well  known.  By  the  ancient  common  law,  felony  was  pun- 
ished by  the  death  of  the  criminal,  and  the  forfeiture  of  all 
his  lands  and  goods  to  the  crown.  Inasmuch  as  an  action 
at  law  against  a  person,  whose  body  could  not  be  taken  in 
execution  and  whose  property  and  effects  belonged  to  the 
king,  would  be  a  useless  and  fruitless  remedy,  it  was  held 
to  be  merged  in  the  public  offence.  Besides ;  no  such  remedy 
in  favor  of  the  citizen  could  be  allowed  without  a  direct 
interference  with  the  royal  prerogative.  Therefore  a  party 
injured  by  a  felony  could  originally  obtain  no  recompense 
out  of  the  estate  of  a  felon,  nor  even  the  restitution  of  his 
own  property,  except  after  a  conviction  of  the  offender,  by  a 
proceeding  called  an  appeal  of  felony,  which  was  long  dis- 
used, and  wholly  abolished  by  St.  59,  Geo.  3,  c.  46 ;  or  under 
St.  21,  H.  8,  c.  11,  by  which  the  judges  were  empowered  to 
grant  writs  of  restitution,  if  the  felon  Avas  convicted  on  the 
evidence  of  the  party  injured  or  of  others  by  his  procure- 
ment. 2  Car.  &  P.  43,  note.  But  these  incidents  of  felony, 
if  they  ever  existed  in  this  State  [Mass.],  were  discontinued 
at  a  very  early  period  in  our  colonial  history.  Forfeiture 
of  lands  or  goods,  on  conviction  of  crime,  was  rarely,  if  ever, 
exacted  here;  and  in  many  cases,  deemed  in  England  to  be 
felonies  and  punishable  with  death,  a  much  milder  penalty 
was  inflicted  by  our  laws.      Consequently  the  remedies,  to 


Introduction.  7 

which  a  party  injured  was  entitled  in  cases  of  felony,  were 
never  introduced  into  our  jurisprudence.  No  one  has  ever 
heard  of  an  appeal  of  felony,  or  a  WTit  of  restitution  under 
St.  21,  H.  8,  c.  11,  in  our  courts.  So  far  therefore  as  we 
know  the  origin  of  the  rule,  and  the  reasons  on  which  it  was 
founded,  it  would  seem  very  clear  that  it  was  never  adopted 
here  as  part  of  our  common  law."  Boston  &  Worcester  R.  R. 
Co.  V.  Dana,  1  Gray,  83,  96  and  98. 

Some  maxims. —  JJhi  jus,  ihi  remedium,  i.  e.,  wherever 
there  is  a  wrong,  there  is  a  remedy.  This  maxim  of  the  law 
"  has  at  all  times  been  considered  so  valuable^  that  it  gave 
occasion  to  the  first  invention  of  that  form  of  action  called 
an  action  on  the  case,  where  the  novelty  of  the  complaint  is 
no  objection  to  the  action,  provided  an  injury  cognizable  by 
law,  is  shown  to  have  been  inflicted  on  the  plaintiff;  for 
'this  form  of  action  was  introduced  for  the  reason  that  the 
law  would  never  suffer  a  w-rong  and  a  damage  without  a 
remedy ;  '  but  there  are  cases  where  persons  have  suffered 
serious  injury  from  the  acts  and  doings  of  others  of  which 
the  law,  from  reasons  of  public  policy,  takes  no  cognizance." 
Addison  on  Torts,  72. 

Injuria  sine  (or  absque)  damno,  i.  e.,  a  wrongful  act  or 
omission  without  actual  damage. 

Damnum  sine  (or  absque)  injuria,  i.  e.,  damage  without 
wrongful  act  or  omission;  damage  from  inevitable  accident, 
or  from  the  proper  performance  of  a  lawful  act. 

"  I  can  very  well  understand  that  no  action  lies  in  a  case 
Avhere  there  is  damnum  absque  injuria;  that  is,  where  there 
is  a  damage  done  without  any  wrong  or  violation  of  any 
right  of  the  plaintiff.  But  I  am  not  able  to  understand  how 
it  can  correctly  be  said,  in  a  legal  sense,  that  an  action  will 
not  lie,  even  in  case  of  a  \vrong  or  violation  of  a  right,  unless 
it  is  followed  by  some  perceptible  damage,  which  can  be 
established  as  a  matter  of  fact ;  in  other  words,  that  injuria 
sine  damno  is  not  actionable.     .     .     .     The  law  tolerates  no 


8  Intkoductioi?. 

further  inquiry  than  whether  there  has  been  the  ■violation  of 
a  right.  If  so,  the  party  injured  is  entitled  to  maintain  his 
action  for  nominal  damages,  in  vindication  of  his  right,  if 
no  other  damages  are  fit  and  proper  to  renmnerate  him." 
Wehh  V.  Portland  Man.  Co.,  3  Sumner,  189;  29  Fed.  Gas. 
506. 

In  some  classes  of  cases,  e.  g.,  in  deceit  and  in  slander  not 
actionable  per  se,  damage  must  be  alleged  and  proved  in 
order  to  make  out  a  cause  of  action,  an  injuria. 

Sic  utere  tuo  ut  alieninn  tion  laedas,  i.  e.,  so  use  your  own 
rights  as  not  to  injure  another. 

"  It  is  an  elementary  principle  in  reference  to  private 
rights,  that  every  individual  is  entitled  to  the  undisturbed 
possession  and  la^vful  enjoyment  of  his  own  property.  The 
mode  of  enjoyment  is  necessarily  limited  by  the  rights  of 
others  —  otherwise  it  might  be  made  destructive  of  their 
rights    altogether.     Hence    the   maxim   sic   utere    tuo,   etc. 

''  The  use  of  land  by  the  proprietor  is  not  therefore  an 
absolute  right,  but  qualified  and  limited  by  the  higher  right 
of  others  to  the  lawfid  possession  of  their  property."  Hay 
V.  The  Cohoes  Co.,  2  Is\  Y.  159,  161. 

"  The  maxim  sic  utere  tuo  id  alienum  non  laedas  is  iterated 
and  reiterated  in  our  books,  and  yet  there  is  scarcely  an 
aphorism  known  to  the  law  the  true  application  of  which  is 
more  vague  and  undefined.  Interpreted  literally  it  would 
enjoin  a  man  against  any  use  of  his  own  property  which  in 
its  consequences  might  injuriously  affect  the  interests  of 
others;  but  no  such  legal  principle  ever  existed.  The  affairs 
of  life  could  not  well  be  conducted  under  the  restraints  of 
such  a  rule.  On  the  contrary  every  proprietor  has  absolute 
control  over  his  owm  property,  and  may  do  with  it  whatever 
he  pleases,  unless  he  thereby  infringes  some  fixed  legal  right 
of  another. 

"  While,  therefore,  sic  utere  tuo,  etc.,  may  be  a  very  good 
moral  precept,  it  is  utterly  useless  as  a  legal  maxim.      It 


Introduction.  9 

determines  no  right;  it  defines  no  obligation.  The  cases  to 
which  the  maxim  has  been  generally  applied  are  those  where 
the  owner  of  one  tenement  does  some  act  upon  his  own 
premises  which  injuriously  affects  the  interests  of  the  pro- 
prietor of  an  adjoining  tenement."  Selden,  J.,  in  Auburn 
&  Cato  Plank  Road  Co.  v.  Douglass,  9  N.  Y.  444,  445. 

In  jure  non  remota  causa  sed  proxima  spedatur,  i.  e.,  the  ^*^ 

damage  sustained  must  be  the  proximate  and  not  the  remote 
result  of  the  wrongful  act. 

"  What  is  the  proximate  cause  of  an  injury  is  ordinarily 
a  question  for  the  jury.  It  is  not  a  question  of  science  or 
of  legal  knowledge.  It  is  to  be  determined  as  a  fact,  in  view 
of  the  circumstances  of  fact  attending  it.  The  primary 
cause  may  be  the  proximate  cause  of  a  disaster,  though  it 
may  operate  through  successive  instruments,  as  an  article  at 
the  end  of  a  chain  may  be  moved  by  a  force  applied  to  tho 
other  end,  that  force  being  the  proximate  cause  of  the  move- 
ment, or  as  in  the  oft-cited  case  of  the  squib  thrown  in  the 
market-place.  2  Bl.  Rep.  892.  The  question  always  is,  Was 
there  an  unbroken  connection  between  the  wrongful  act  and 
the  injury,  a  continuous  operation?  Did  the  facts  consti- 
tute a  continuous  succession  of  events,  so  linked  together  as 
to  make  a  natural  whole,  or  was  there  some  new  and  inde- 
pendent cause  intervening  between  the  wrong  and  the 
injury?  It  is  admitted  that  the  rule  is  difficult  of  applica- 
tion. But  it  is  generally  held,  that,  in  order  to  warrant  a 
finding  that  negligence,  or  an  act  not  amounting  to  wanton 
v^Tong,  is  the  proximate  cause  of  an  injury,  it  must  appear 
that  the  injury  was  the  natural  and  probable  consequence  of 
the  negligence  or  w^rongful  act,  and  that  it  ought  to  have 
been  foreseen  in  the  light  of  the  attending  circumstances. 
We  do  not  say  that  even  the  natural  and  probable 
consequences  of  a  wrongful  act  or  omission  are  in  all  cases 
to  be  chargeable  to  the  misfeasance  or  nonfeasance.  They 
are  not  when  there  is  a  sufficient  and  independent  cause  oper- 
ating between  the  wrong  and  the  injury.     In  such  a  case 


10  Introduction. 

the  resort  of  the  sufferer  must  be  to  the  originator  of  the 
intermediate  cause.  But  when  there  is  no  intermediate 
efficient  cause,  the  original  wrong  must  be  considered  as 
reaching  to  the  effect,  and  proximate  to  it.  .  .  .  In  a 
succession  of  dependent  events  an  interval  may  always  be  seen 
by  an  acute  mind  between  a  cause  and  its  effect,  though  it 
may  be  so  imperceptible  as  to  be  overlooked  by  a  common 
mind.  ...  In  the  nature  of  things,  there  is  in  every 
transaction  a  succession  of  events,  more  or  less  dependent 
upon  those  preceding,  and  it  is  the  province  of  a  jury  to  look 
at  this  succession  of  events  or  facts,  and  ascertain  whether 
they  are  naturally  and  probably  connected  with  each  other 
by  a  continuous  sequence,  or  are  dissevered  by  new  and  inde- 
pendent agencies,  and  this  must  be  determined  in  view  of 
the  circumstances  existing  at  the  time."  Milwaukee,  etc., 
Railway  Co.  v.  Kellogg,  94  U.  S.  469,  474. 

"  The  maxim  causa  proxima  non  remota  spectatur  means 
but  this.  We  are  not  to  link  together  as  cause  and  effect, 
events  having  no  probable  connection  in  the  mind,  and  which 
could  not  by  prudent  circumspection  and  ordinary  thought- 
fulness  be  foreseen  as  likely  to  happen  in  consequence  of  the 
act  in  which  we  are  engaged.  It  may  be  true  that  the  injury 
would  not  have  occurred  without  the  concurrence  of  our  act 
with  the  event  which  immediately  caused  the  injury,  but  we 
are  not  justly  called  to  suffer  for  it  unless  the  other  event 
was  the  effect  of  our  act,  or  were  within  the  probable  range  of 
ordinary  circumspection  when  engaged  in  the  act."  McGrew 
V.  Sto7ie,  53  Pa.  St.  436,  442. 

"  In  determining  what  is  proximate  cause,  the  true  rule 
is,  that  the  injury  must  be  the  natural  and  probable  conse- 
quence of  the  negligence  —  such  a  consequence  as,  under  the 
surrounding  circumstances  of  the  case,  might  and  ought  to 
have  been  foreseen  by  the  wrongdoer  as  likely  to  flow  from 
his  act.  This  is  not  a  limitation  of  the  maxim  causa  proxima 
non  remota  spectatur;  it  only  affects  its  application."  Hoag 
V.  LaJce  Shore  &  Mich.  Southern  R.  R.  Co.,  85  Pa.  St.  293, 
298.    See,  also,  Laidlaw  v.  Sage,  158  N.  Y.  73,  98. 


Intkoduction.  11 

Nervous  shock  in  cases  of  willful  tort. —  In  case  of  pure 
assault,  mere  attempt  to  do  bodily  harm,  without  physical 
contact,  the  law  has  allowed  recovery  for  mental  suffering, 
apparently  on  the  theory  that  every  one  has  a  right  to  live 
without  being  put  in  fear  of  personal  harm.  (Martin  v. 
Shoppee,  3  Carr.  &  P.  373 ;  Stephens  v.  Myers,  4  id.  349 ; 
Beach  v.  Hancock,  27  K  H.  223.)  That  such  suffering  may 
be  remote  and  not  proximate  to  the  wrongful  act  is  not  dis- 
cussed, much  less  declared. 

In  the  case  of  Spade  v.  Lynn  &  Boston  Railroad,  168  Mass. 
285,  the  court,  after  refusing  to  allow  recovery  for  mental 
suffering  unaccompanied  by  bodily  injury  in  an  action  for 
negligence,  concludes  at  page  290 :  "  It  is  hardly  necessary 
to  add  that  this  decision  does  not  reach  those  classes  of 
actions  where  an  intention  to  cause  mental  distress  or  to  hurt 
the  feelings  is  sho^^Ti,  or  is  reasonably  to  be  inferred,  as,  for 
example,  in  cases  of  seduction,  slander,  malicious  prosecu- 
tion, or  arrest,  and  some  others.  Nor  do  we  include  cases 
of  acts  don©  with  gross  carelessness  or  recklessness,  showing 
utter  indifference  to  such  consequences,  when  they  must  have 
been  in  the  actor's  mind." 

The  Appellate  Division  of  the  First  Department  in  this 
State  in  the  case  of  Williams  v.  Underhill,  63  App.  Div.  223, 
226,  says:  "As  is  clearly  indicated  by  the  opinion  in  the 
Mitchell  Case  [151  N.  Y.  107]  the  reason  for  limiting  lia- 
bility in  actions  for  negligence  is  founded  in  the  principle 
0"f  law  governing  such  actions,  viz.,  that  the  measure  of  dam- 
age shall  be  confined  to  the  natural  and  probable  conse- 
quences of  the  act  or  omission  constituting  the  cause  of 
action.  The  distinction  between  such  a  case  and  one  founded 
upon  a  willful  tort,  such  as  assault,  is  very  clear." 

Nervous  shock  in  actions  for  negligence. —  When  fear  and 
its  consequences  are  the  result  of  a  negligent,  instead  of  a 
wilful  act,  the  tendency  of  the  decisions  is  to  deny  recovery, 
unless  bodily  injury  accompanies.  (Mitchell  v.  Rochester 
Railway  Co.,  151  N.  Y,  107 ;  Spade  v.  Lynn  &  Boston  R.  R. 


12  Introduction, 

Co.,  168  Mass.  285 ;  Ewing  v.  P.,  C.  &  St.  L.  By.  Co.,  147 
Pa.  St.  40.) 

This  cannot  satisfactorily  be  explained.  The  courts,  in 
applying  the  rule  of  proximate  cause,  hold  in  actions  for 
negligence  that  mental  suffering,  unaccompanied  by  bodily 
injury,  is  too  remote  from  the  alleged  wrong,  and  are  seem- 
ingly influenced  thereto  by  the  consideration  that  to  allow 
such  claims  would  open  the  flood-gates  of  litigation  and  pave 
the  way  for  much  deception,  because  "mental  suffering  is 
so  largely  subjective,  so  peculiarly  dependent  upon  the  mental 
traits  and  idiosyncracies  of  the  alleged  sufferer,  and  so 
peculiarly  incapable  of  demonstration  to  a  third  person." 
(1  University  Law  Rev.  822.) 

"  The  exemption  from  liability  for  mere  fright,  terror, 
alarm,  or  anxiety  does  not  rest  on  the  assumption  that  these 
do  not  constitute  an  actual  injury.  They  do  in  fact  deprive 
one  of  enjopnent  and  of  comfort,  cause  real  suffering,  and  to 
a  greater  or  less  extent  disqualify  one  for  the  time  being 
from  doing  the  duties  of  life.  If  these  results  flow  from  a 
wrongful  or  negligent  act,  a  recovery  therefor  cannot  be 
denied  on  the  ground  that  these  results  may  not  be  the  direct 
and  immediate  consequence  of  the  negligence.  Danger  ex- 
cites alarm.  Fev/  people  are  wholly  insensible  to  the  emo- 
tions caused  by  imminent  danger,  though  some  are  less 
affected  than  others. 

"  It  must  also  be  admitted  that  a  timid  or  sensitive  person 
may  suffer  not  only  in  mind,  but  also  in  body,  from  such  a 
cause.  Great  emotion  may  and  sometimes  does  produce  phys- 
ical effects.  The  action  of  the  heart,  the  circulation  of  the 
blood,  the  temperature  of  the  body,  as  well  as  the  nerv-es  and 
the  appetite,  may  all  be  affected.  A  physical  injury  may  be 
directly  traceable  to  fright,  and  so  may  be  caused  by  it.  We 
cannot  say,  therefore,  that  such  consequences  may  not  flow 
proximately  from  unintentional  negligence,  and  if  compen- 
sation in  damages  may  be  recovered  for  a  physical  injury 
so  caused,  it  is  hard  on  principle  to  say  why  there  should  not 
also  be  a  recovery  for  the  mere  mental  suffering  when  not 
accompanied  by  any  perceptible  physical  effects. 


Inteoduction.  13 

"  It  would  seem  therefore  that  the  real  reason  for  refusing 
damages  sustained  from  mere  fright  must  be  something  dif- 
ferent ;  and  it  probably  rests  on  the  ground  that  in  practice 
it  is  impossible  satisfactorily  to  administer  any  other  rule." 
Spade  V.  Lynn  &  Boston  R.  B.  Co.,  168  Mass.  285,  288. 

The  rule,  as  above  stated,  seems  to  be  founded  on  practical 
expediency  rather  than  on  sound  reason.  The  rule  of  proxi- 
mate cause  is  simple  and  clear ;  the  difficulty  lies  in  its  appli- 
cation ;  but  the  difficulty  of  applying  a  rule  is  poor  argument 
against  its  application.  If  a  passenger,  placed  in  imminent 
peril  by  the  negligence  of  a  carrier,  follow  the  natural  in- 
stinct of  self-preservation  and  jump  from  the  car,  he  may, 
in  the  absence  of  contributory  negligence,  recover,  notwith- 
standing, had  he  remained  in  the  car,  he  would  not  have  been 
injured.  {^Yilson  v.  Northern  Bad  fie  B.  B.  Co.,  26  Minn. 
278;  Buel  v.  N.  Y.  C.  B.  B.  Co.,  31  K  Y.  311;  Twomley 
V.  Ce7it.  Bark  B.  B.  Co.,  69  id.  158;  Stokes  v.  Saltonstall, 
13  Pet.  181.) 

Some  jurisdictions  do  not  admit  the  rule.  "  Physical 
injury  or  illness  sometimes  causes  mental  disease.  A 
mental  shock  or  disturbance  sometimes  causes  injury  or 
illness  of  body,  especially  of  the  nervous  system,  i^ow,  if 
the  fright  was  the  natural  consequence  of  —  was  brought 
about,  caused  by  —  the  circumstances  of  peril  and  alarm  in 
which  defendant's  negligence  placed  plaintiff,  and  the  fright 
caused  the  nervous  shock  and  convulsions  and  consequent 
illness,  the  negligence  was  the  proximate  cause  of  those 
injuries."  Burcell  v.  St.  Baiil  City  By.  Co.,  48  Minn.  134, 
138. 

In  Dulieu  v.  Wiite  &  Sons,  2  K.  B.  669  (1901),  depart- 
ing from  Victorian  Bailways  Commissioners  v.  Coultas,  13 
App.  Cas.  222  (1888),  Kennedy,  J.,  at  p.  677,  says:  "Why 
is  the  accompaniment  of  physical  injury  essential  ?  For  my 
own  part,  I  should  not  like  to  assume  it  to  be  scientifically 
true  that  a  nervous  shock  which  causes  serious  bodily  illness  is 
not  actually  accompanied  by  physical  injury,  although  it  may 
be  impossible,  or  at  least  difficult,  to  detect  the  injury  at  the 


14  IiXTKODUCTION. 

time  in  the  living  subject.  I  should  not  be  surprised  if  the 
surgeon  or  the  physiologist  told  us  that  nervous  shock  is  or 
may  be  in  itself  an  injurious  affection  of  the  physical  organ- 
ism. Let  it  be  assumed,  however,  that  the  physical  injury 
follows  the  shock,  but  that  the  jury  are  satisfied  upon  proper 
and  sufficient  medical  evidence  that  it  follows  the  shock  as 
its  direct  and  natural  effect,  is  there  any  legal  reason  for 
saying  that  the  damage  is  less  proximate  in  the  legal  sense 
than  damage  which  arises  contemporaneously  ?  '  As  well 
might  it  be  said '  (I  am  quoting  from  the  judgment  of  Palles, 
C.  B.,  26  L.  R.  Ir.  at  p.  439)  '  that  a  death  caused  by  poison 
is  not  to  be  attributed  to  the  person  who  administered  it 
because  the  mortal  effect  is  not  produced  contemporaneously 
with  its  administration.'  Remoteness  as  a  legal  ground  for 
the  exclusion  of  damage  in  an  action  of  tort  means,  not 
severance  in  point  of  time,  but  the  absence  of  direct  and 
natural  causal  sequence  —  the  inability  to  trace  in  regard 
to  the  damage  the  '  propter  hoc '  in  a  necessary  or  natural 
descent  from  the  "v^Tongful  act.     As  a  matter  of  experience, 

1  should  say  that  the  injury  to  health  which  forms  the  main 
groimd  of  damages  in  actions  of  negligence,  either  in  cases 
of  railway  accidents  or  in  running-down  cases,  frequently  is 
proved,  not  as  a  concomitant  of  the  occurrence,  but  as  one 
of  the  sequelae." 

After  a  consideration  of  the  case  of  Mitchell  v.  Rochester 
R.  Co.,  151  N.  Y.  107  and  of  Spade  v.  Lynn  &  Boston  Ry. 
Co.,  168  Mass.  285,  Kennedy,  J.,  in  Dulieuv.  White  &  Sons, 

2  K.  B.  669,  681,  says:  "  I  should  be  sorry  to  adopt  a  rule 
which  would  bar  all  such  claims  on  grounds  of  policy  alone, 
and  in  order  to  prevent  the  possible  success  of  unrighteous 
or  groundless  actions.  Such  a  course  involves  the  denial  of 
redress  in  meritorious  cases,  and  it  necessarily  implies  a  cer- 
tain degree  of  distrust,  which  I  do  not  share,  in  the  capacity 
of  legal  tribunals  to  get  at  the  truth  in  this  class  of  claim. 
My  experience  gives  me  no  reason  to  suppose  that  a  jury 
would  really  have  more  difficulty  in  weighing  the  like  evi- 
dence as  to  the  effects  of  nervous  shock  through  fright,  than 


Introduction.  15 

in  weighing  the  like  evidence  as  to  the  effects  of  nervous 
shock  through  a  railway  collision  or  a  carriage  accident, 
where,  as  often  happens,  no  palpable  injury,  or  very  slight 
palpable  injury,  has  been  occasioned  at  the  time." 

Liability  for  fires  negligently  set. — "At  common  law  every 
master  of  a  house  or  chamber  was  bound  to  so  keep  his  fire 
as  to  prevent  it  from  occasioning  injury  to  his  neighbors.  If 
a  fire  broke  out  in  a  house  and  burned  an  adjoining  dwelling 
or  did  other  damage,  the  master  of  the  house  in  which  the 
fire  began  was  liable  to  make  compensation.  It  was  not  neces- 
sary to  prove  negligence ;  the  law  presumed  it.  (Year  Book, 
2  II.  4,  pL  18;  1  Black.  Com.  431.) 

"  This  law  was  first  changed  by  statute  6  Anne,  c.  31, 
which  provided  that :  '  ISTo  action  shall  be  maintained  against 
any  person  in  whose  house  or  chamber  any  fire  shall  acci- 
dentally begin,  for  their  OAvn  loss  is  sufficient  punishment 
for  their  o^\^a  or  their  servants'  carelessness.'  This  statute 
was  amended  by  14  Geo.  Ill,  c.  78,  which  provided  that: 
'  JSTo  action  shall  be  brought  against  any  person  in  whose 
house,  chamber  or  other  building,  or  whose  estate  any  fire 
shall  accidentally  begin,  any  law,  usage  or  custom  to  the 
contrary  notwithstanding.'  The  provisions  of  these  statutes 
have  been  limited  to  accidental  fires  and  not  to  those  negli- 
gently set;  under  the  statute,  however,  negligence  will  no 
longer  be  presumed,  but  must  be  shown  by  the  party  asserting 
it.  {Filliter  v.  Phip-pard,  11  Adol.  &  Ellis  [N.  S.],  347.)" 
Hoffman  v.  King,  160  N.  Y.  618,  622. 

In  this  class  of  cases,  the  New  York  Court  of  Appeals  has 
limited  the  liability  for  fires  negligently  set  to  the  damage 
to  the  property  immediately  adjoining,  and  has  held  that, 
if  the  fire  spreads  across  the  abutting  property,  upon  lands 
of  other  proprietors,  damage  to  the  latter  is  too  remote  to 
impose  liability.  Such  decision  is,  in  fact,  one  of  expedi- 
ency, and  recourse  is  had  for  support  to  the  much  criticised, 
and,  to  some  extent,  overruled  case  of  Ryan  v.  N.  Y.  C. 
B.  R.  Co.,  35  N.  Y.  210. 


16  Inteoduction. 

"  It  is  contended  that  liability  ought  not  to  be  thus  lim- 
ited; that  a  fire  once  set  may  run  across  the  lines  of  an 
abutting  owner  and  upon  lands  of  other  proprietors,  causing 
damage.  It  must  be  conceded  that  such  a  result  often  hap- 
pens. It  did  in  the  case  we  have  under  consideration.  But 
where  is  the  line  to  l)e  dra^vn  ?  Shall  it  be  one  mile,  two 
miles  or  ten  miles  distant  from  the  place  of  the  original 
starting  of  the  fire?  \Yho  is  to  specify  the  distance?  It  is 
suggested  that  it  might  be  left  to  the  jury;  but  a  jury  in 
one  part  of  the  state  might  answer  one  mile,  and  in  another 
part  it  might  determine  the  rule  of  liability  to  extend  ten 
miles.  The  evidence  upon  this  branch  of  the  case  is  undis- 
puted, and  in  such  cases  the  question  as  to  what  is  proxi- 
mate cause  is  always  for  the  court  and  not  for  the  jury. 

"  While  we  appreciate  the  force  of  the  argument  in  favor 
of  extending  the  rule  of  liability,  and  recognize  the  fact  that 
a  limitation  of  the  rule  will  deprive  many  persons  of  a  right 
of  action  for  damages,  we  are  convinced  that  the  old  rule  is 
wiser  and  more  just  and  that  we  ought  not  to  depart  from  it. 
The  limitation  may  be  somewhat  arbitrary,  but  it  recog- 
nizes the  principle  that  we  should  live  and  let  live."  Hoff- 
man V.  King,  160  N.  Y.  618,  628. 

Release  of  one  of  two  joint  tort  feasors. — "  The  rule  is, 
that  a  party  receiving  an  injury  from  the  wrongful  acts  of 
others,  is  entitled  to  but  one  satisfaction,  and  that  an  accord 
and  satisfaction  by,  or  a  release  or  other  discharge  by  the 
voluntary  act  of  the  party  injured,  of  one,  of  two  or  more 
joint  tort  feasors,  is  a  discharge  of  all."  Barrett  v.  Third 
Ave.  B.  R.  Co.,  45  N.  Y.  628,  635. 

"  This  rule  is  founded  upon  the  theory  that  a  party  is 
entitled  to  but  one  satisfaction  for  the  injury  sustained  by 
him."     Gilbert  v.  Finch,  173  N.  Y.  455,  462. 

V/hen  release  contains  a  reservation  of  a  right  to  sue. — 
"  In  England  the  modem  authorities  appear  to  be  quite  uni- 
form upon  the  question.      They  are  to  the  effect  that,   as 


Intkoduction".  it 

between  joint  debtors  and  joint  tort  feasors,  a  release  given 
to  one  releases  all ;  but  if  the  instrument  contains  a  reser- 
vation of  a  right  to  sue  the  other  joint  debtor  or  tort  feasors, 
it  is  not  a  release,  but  in  effect  is  a  covenant  not  to  sue  the 
person  released,  and  a  covenant  not  to  sue  does  not  release 
a  joint  debtor  or  a  joint  tort  feasor."  And  "  The  decisions 
of  this  court  are  in  accord  with  the  English  rule  and  in  har- 
mony with  our  statute  in  reference  to  joint  debtors.  (Code 
Civ.^ro.,  §§  1942,  1944.)"  G'llhert  v.  Finch,  173  K  Y. 
455,  463-4G6. 

No  contribution  among  joint  tort  feasors. — ''  In  actions 
for  joint  torts,  a  joint  liabiiitv  exists,  and  a  recovery  may 
be  enforced  against  any  one  of  the  defendants.  The  party 
paying  such  claim  has  no  right  to  contribution  from  the 
other  defendants,  even  although,  by  the  payment,  he  has 
relieved  them  from  their  liability.  {Miller  v,  Fenton,  11 
Paige,  18.  Peck  v.  Ellis,  2  John'.  Ch.  131.)  The  principle 
on  which  these  decisions  are  made  is,  that  whenever  the  lia- 
bility arises  ex  delicio,  there  is  no  contribution."  Andrews 
V.  Murray,  33  Barb.  354,  356. 

Reason  for  the  rule. — "  The  reason  assigned  in  the  books 
for  denying  contribution  among  trespassers  is,  that  no  right 
of  action  can  be  based  on  a  violation  of  law,  that  is,  where 
the  act  is  known  to  be  such  or  is  apparently  of  that  character. 
A  guilty  trespasser  cannot  be  allowed  to  appeal  to  the  law 
for  an  indemnity,  for  he  has  placed  himself  without  its  pale 
by  contemning  it,  and  must  ask  in  vain  for  its  interposition 
in  his  behalf."     Bailey  v.  Bussing,  28  Conn.  455,  458. 

Limitation  of  the  rule. —  "  If  however  he  was  innocent  of 
an  illegal  j)urpose,  ignorant  of  the  nature  of  the  act,  which 
was  apparently  correct  and  proper,  the  rule  will  change  with 
its  reason,  and  he  may  then  have  an  indemnity,  or  as  the 
case  may  be  a  contribution,  as  a  servant  yielding  obedience 
to  the  command  of  his  master,  or  an  agent  to  his  principal, 
in  what  appears  to  be  right,  an  assistant  rendering  aid  to  a 


18  Introduction. 

sheriff  in  the  execution  of  process,  or  common  carriers,  to 
whom  is  committed  and  who  innocently  carry  away  prop- 
erty which  has  been  stolen  from  the  owner. 

"  Indemnity,  or  contribution  to  the  full  amount,  is  allow- 
able here,  and  it  can  be  enforced  by  action  if  refused,  whether 
the  person  seeking  it  has  been  subjected  in  case  or  assumpsit 
to  the  damages  of  which  he  complains.  And  since  in  many 
instances  the  person  injured  has  an  election  to  sue  in  case 
or  assumpsit,  it  is  not  possible  that  the  form  of  action  in 
which  the  party  seeking  for  indemnity  or  contribution  has 
been  subjected,  should  be  the  criterion  of  his  right  to  call 
for  it.  One  partner  or  one  joint  proprietor  may  do  that 
which  will  subject  all  the  rest  in  case  or  assumpsit,  as  the 
fact  may  be,  but  there  may  be  a  right  to  contribution  not- 
withstanding, and  in  some  cases,  .  .  .  ,  a  full  indem- 
nity may  be  justly  demanded  from  the  person  doing  the 
wrong,  by  the  other  partners  whom  he  has  involved  in  loss 
by  his  wrongful  act.  The  form  of  action  then  is  not  the 
criterion.  We  must  look  further.  We  must  look  for  per- 
sonal participation,  personal  culpability,  personal  knowledge. 
If  we  do  not  find  these  circumstances,  but  perceive  only  a 
liability  in  the  eye  of  the  law,  growing  out  of  a  mere  relation 
to  the  perpetrator  of  the  wrong,  tlie  maxim  of  law  that  there 
is  no  contribution  among  wrong  doers  is  not  to  be  applied. 
Indeed  w^e  think  this  maxim  too  much  broken  in  upon  at 
this  day  to  be  called  with  propriety  a  rule  of  law,  so  many 
are  the  exceptions  to  it,  as  in  the  cases  of  master  and  servant, 
principal  and  agent,  partners,  joint  operators,  carriers  and 
the  like."     Bailey  v.  Bussing,  28  Conn.  455,  459. 

The  weakness  of  the  above  argument  lies  in  measure  in 
the  failure  to  observe  the  distinction  between  right  to  indem- 
nity or  damage  and  right  to  contribution. 

Three  main  heads  of  duty.—  Every  one  is  under  obliga- 
tion, 

( 1 )   To  abstain  from  willful  injury. 

(  2  )   To  respect  property  rights. 

(3)   To  act  with  reasonable  and  proper  care. 


Inteoduction.  19 

Liability  in  tort. — Generally  speaking,  natural  capacity, 
not  personal  status,  determines  liability  in  tort.  The  law, 
however,  does  not  hold  persons  of  weak  or  immature  mind 
to  the  same  strict  accountability,  in  all  cases,  as  persons 
affected  by  no  such  disabilities. 

"  In  the  law  of  contract  various  grounds  of  personal  dis- 
ability have  to  be  considered  with  some  care.  ...  In 
the  law  of  tort  it  is  otherwise.  Generally  speaking,  there  is 
no  limit  to  personal  capacity  either  in  becoming  liable  for 
civil  injuries,  or  in  the  power  of  obtaining  redress  for  them. 
It  seems  on  principle  that  where  a  particular  intention, 
knowledge,  or  state  of  mind  in  the  person  charged  as  a 
wrong-doer  is  an  element,  as  it  sometimes  is,  in  constituting 
the  alleged  wrong,  the  age  and  mental  capacity  of  the  person 
may  and  should  be  taken  into  account  (along  with  other  rele- 
vant circumstances)  in  order  to  ascertain  as  a  fact  whether 
that  intention,  knowledge,  or  state  of  mind  was  present. 
But  in  every  case  it  would  be  a  question  of  fact,  and  no 
exception  to  the  general  rule  would  be  established  or  pro- 
pounded."    Pollock  on  Torts  (7th  ed.),  53. 

Infants. —  "  The  general  rule  is,  of  course,  that  infants 
are  liable  for  their  torts.  .  .  .  But  the  rule  is  not  an 
unlimited  one,  but  is  to  be  applied  with  due  regard  to  the 
other  equally  well  settled  rule  that,  with  certain  exceptions, 
they  are  not  liable  on  their  contracts;  and  the  dominant 
consideration  is  not  that  of  liability  for  their  torts  but  of 
protection  from  their  contracts."  Slayton  v.  Barry,  175 
Mass.  513,  515. 

"  Acts,  however  aggravated,  which  merely  establish  a 
breach  of  the  contract  on  the  part  of  an  infant,  manifestly 
are  insufficient.  The  plaintiff  cannot  convert  anything  that 
arises  out  of  a  contract  with  an  infant,  into  a  tort,  and  then 
seek  to  enforce  the  contract,  through  the  medium  of  an  action 
ex  delicto."    Moore  v.  Eastman,  1  Hun,  578,  579. 

"  The  contract  of  an  infant  is  not  void,  but  is  voidable  at 
the  election  of  the  infant.     If  a  horse  is  let  to  him  to  go  a 


20  Introduction, 

journey,  there  is  an  implied  promise  that  he  will  make  use 
of  ordinary  care  and  diligence  to  protect  the  animal  from 
injury,  and  return  him  at  the  time  agreed  upon.  A  baro 
neglect  to  do  either,  "would  not  subject  him  or  an  adult  to  an 
action  of  trespass,  the  contract  remaining  in  full  force.  But 
if  the  infant  does  any  wilful  and  positive  act,  which  amounts 
to  an  election  on  his  part  to  disaffirm  the  contract,  the  owner 
is  entitled  to  the  immediate  possession.  If  he  wilfully  and 
intentionally  injures  the  animal,  an  action  of  trespass  lies 
against  him  for  the  tort.  If  he  should  sell  the  horse,  an 
action  of  trover  would  lie,  and  his  infancy  would  not  pro- 
tect him."     Campbell  v.  Stakes,  2  Wend.  137,  143. 

"  If  an  infant,  by  fraud,  obtains  property,  with  no  inten- 
tion of  paying,  though  it  be  under  the  pretense  of  a  contract 
of  purchase,  the  defrauded  party  may  recover.  lie  does  so 
on  the  ground  that  there  w'as  no  real  contract,  and  he  dis- 
affirms the  apparent  contract.  On  the  same  ground  those 
cases  must  stand  Avhich  have  permitted  a  recovery  for  dam- 
ages when  an  infant,  to  obtain  goods,  has  fraudulently  pre- 
tended that  he  was  of  full  age. 

"  On  the  same  principle,  if  a  party  has  been  induced  to 
purchase  property  from  an  infant,  by  the  infant's  fraud  and 
misrepresentation,  it  w^ould  seem  that  he  might,  on  discover- 
ing the  fraud,  disaffirm  the  contract,  return,  or  offer  to  return 
the  property,  and  thus  put  the  infant  in  the  position  of  a  mere 
wrong-doer,  unjustly  keeping  what  he  had  fraudulently 
obtained.  And  it  would  seem  that  the  infant  w^ould  then 
be  liable  in  damages  for  tort. 

"  But  where,  .  .  .  ,  the  aggrieved  party  retains  the 
benefit  of  the  contract,  he  does  not  disaffirm  it.  Plis  action 
there  rests  on  the  ground  that  he  has  made  a  contract,  and  it 
is  necessary  for  his  recovery  that  he  should  show  that  a  bind- 
ing contract  has  been  made.  Here,  then,  infancy  becomes  a 
defence.  The  defendant  says  there  has  been  no  binding  con- 
tract ;  no  action,  therefore,  lies  for  fraud  in  respect  to  a  con- 
tract which  he  could  not  make.  The  alleged  contract  is  the 
substantive  ground  of,  or  the  inducement  to,  the  cause  of 


Inteoduction.  21 

action ;  for,  if  there  was  no  contract,  then  there  could  be  no 
fraud  in  the  making  of  it,  and  disproving  the  contract  defeats 
the  action."    Hewitt  v.  Warren,  10  Hun,  560,  564. 

Child  vs.  parent  for  personal  injuries. —  "  Though  the  old 
ideas  regarding  the  need  of  severity  and  strict  discipline 
have  to  a  large  extent  passed  away,  the  father  may  still 
not  only  restrain  the  liberty  of  his  infant  child,  but  he  may, 
as  reason  shall  seem  to  him  to  require,  inflict  corporal  punish- 
ment for  misbehavior.  The  limit  to  his  authority  is  that 
uncertain  limit  that  the  correction  must  be  moderate,  and 
dictated  by  reason  and  not  by  passion.  If  he  plainly  exceeds 
all  bounds,  he  is  liable  to  criminal  prosecution,  but  it  seems 
never  to  have  been  held  that  the  child  might  maintain  a  per- 
sonal action  for  his  injury.  In  principle  there  seems  to  be 
no  reason  why  such  an  action  should  not  be  sustained ;  but 
the  jDolicy  of  permitting  actions  that  thus  invite  the  child  to 
contest  the  parent's  authority  is  so  questionable,  that  we  may 
well  doubt  if  the  right  will  ever  be  sanctioned."  Cooley  on 
Torts  (2d  ed.),  197. 

Reason  for  the  denial  of  a  cause  of  action. — "  So  long  as 
the  parent  is  under  obligation  to  care  for,  guide  and  con- 
trol, and  the  child  is  under  reciprocal  obligation  to  aid 
and  comfort  and  obey,  no  such  action  as  this  can  be  main- 
tained. The  peace  of  society,  and  of  the  families  composing 
society,  and  a  sound  public  policy,  designed  to  subserve  the 
repose  of  families  and  the  best  interests  of  society,  forbid  to 
the  minor  child  a  right  to  appear  in  court  in  the  assertion  of 
a  claim  to  civil  redress  for  personal  injuries  suffered  at  the 
hands  of  the  parent.  The  state,  through  its  criminal  laws, 
will  give  the  minor  child  protection  from  parental  violence 
and  wrongdoing,  and  this  is  all  the  child  can  be  heard  to 
demand."  Hewlett  v.  Ragsdale,  68  Miss.  703,  711.  See  also 
McKelveij  v.  McKelvey,  111  Tenn.  388. 

Lunatics. —  "  The  general  rule  is  that  an  insane  person  is 
just  as  responsible  for  his  torts  as  a  sane  person,  and  the 


22  Inteoduction. 

rule  applies  to  all  torts,  except  perhaps  those  in  ^vhich  malice 
and,  therefore,  intention,  actual  or  imputed,  is  a  necessary 
ingredient,  like  libel,  slander  and  malicious  prosecution.  In 
all  other  torts  intention  is  not  an  ingredient,  and  the  actor 
is  responsible,  although  he  acted  with  a  good  and  even  laud- 
able purpose,  without  any  malice.  '^^^'"  law  looks  to  the  per- 
son damaged  by  another  and  seek:,  .o  make  him  wdiole,  with- 
out reference  to  the  purpose  or  the  condition,  mental  or 
physical,  of  the  person  causing  the  damage.  The  liability  of 
a  lunatic  for  his  torts,  in  the  opinions  of  judges,  has  been 
placed  upon  several  grounds.  The  rule  has  been  invoked 
that  where  one  of  two  innocent  persons  must  bear  a  loss,  he 
must  bear  it  whose  act  caused  it.  It  is  said  that  public  policy 
requires  the  enforcement  of  tho  liability  that  the  relatives  of 
a  lunatic  may  be  under  inducement  to  restrain  him,  and  that 
tort  feasors  may  not  simulate  or  pretend  insanity  to  defend 
their  wrongful  acts  causing  damage  to  others.  The  lunatic 
must  bear  the  loss  occasioned  by  his  torts,  as  he  bears  his 
other  misfortunes,  and  the  burden  of  such  loss  may  not  be 
put  upon  others."     Williams  v.  Hays,  143  N.  Y.  442,  446. 

Liability  of  infants  and  lunatics  for  negligence. — "  There 
can  be  no  distinction  as  to  the  liability  of  infants  and  luna- 
tics, between  torts  of  non-feasance  and  of  misfeasance  — 
between  acts  of  pure  negligence  and  acts  of  trespass.  The 
ground  of  the  liability  is  the  damage  caused  by  the  tort. 
That  is  just  as  great  whether  caused  by  negligence  or  tres- 
pass; the  injured  p-rty  is  just  as  much  entitled  to  compen- 
sation in  the  one  case  as  in  the  other,  and  the  incompetent 
person  must,  upon  principles  of  right  and  justice  and  of 
public  policy,  be  just  as  much  bound  to  make  good  the  loss 
in  the  one  case  as  the  other ;  and  I  have  found  no  case  which 
makes  the  distinction."  Williams  v.  Hays,  143  N.  Y.  442, 
451. 

"  There  are  few  decisions  on  the  subject  of  the  liability 
of  insane  persons  for  torts  by  negligence,  and  the  text-writers 
appear  to  be  in  great  conflict.     Some  of  the  latter  hold  that 


Introduction.  23 

insanity  is  no  defense.  1  Slieannan  and  Redfield  on  jSTegli- 
gence,  §  121;  Cooley  on  Torts,  2d  cd.,  117.  Others  incline 
to  the  view  that  insanity  should  in  some  cases  be  a  bar. 
1  Beavan  on  JSTegligence,  2d  ed.,  52-55 ;  Wharton  on  Negli- 
gence, §  88 ;  2  Jaggard  on  Torts,  872 ;  Clerk  and  Lindsell 
on  Torts,  11,  34.  The  true  view  seems  to  be  expressed  by 
Mr.  Justice  Holmes :  '  If  insanity  of  a  pronounced  type 
exists,  manifestly  incapacitating  the  sufferer  from  complying 
with  the  rule  which  he  has  broken,  good  sense  would  require 
it  to  be  admitted  as  an  excuse.'  Holmes,  The  Common  Law, 
109."     X  Harvard  Law  Eev.  65. 

Married  women. — At  common  law,  a  married  woman  was 
liable  for  her  torts,  but,  as  she  was  under  disability  to  con- 
tract, she  could  not  be  held  liable  for  wrongs  growing  out  of 
the  violation  of  a  contract.  In  tort  she  had  to  sue  and  be 
sued  jointly  with  her  husband,  who,  under  the  fiction  of  the 
merger  of  legal  identity,  received  the  benefit  of  favorable 
judgments,  and  was  liable  for  adverse  ones.  But  in  New 
York,  "  The  husband  is  not  a  necessary  or  proper  party  to  an 
action  or  special  proceeding  to  recover  damages  to  the  person, 
estate  or  character  of  his  wife,  and  all  sums  that  may  be  re- 
covered in  such  actions  or  special  proceedings  shall  be  the 
separate  property  of  the  wife.  The  husband  is  not  a  neces- 
sary or  proper  party  to  an  action  or  special  proceeding  to 
recover  damages  to  the  person,  estate  or  character  of  another 
on  account  of  the  wrongful  ac(  ■-  of  his  wife  committed  with- 
out his  instigation."      Code  Civ.  Pro.,  §  450. 

"  A  married  woman  has  a  right  of  action  for  an  injury  to 
her  person,  property  or  character  or  for  an  injury  arising 
out  of  the  marital  relation,  as  if  unmarried.  She  is  liable 
for  her  wrongful  or  tortious  acts ;  her  husband  is  not  liable 
for  such  acts  unless  they  were  done  by  his  actual  coercion  or 
instigation  ;  and  such  coercion  or  instigation  shall  not  be  pre- 
sumed but  must  be  proved."  N.  Y.  Laws  of  1896,  ch.  272, 
§27. 


24:  Introduction. 

Right  of  married  woman  to  recover  for  diminished  earn- 
ing capacity. — 'The  Domestic  Relations  Law  (L.  1896,  ch. 
272),  as  amended  by  ch.  495  of  the  Laws  of  1905,  provides 
that,  "  A  married  woman  shall  have  a  cause  of  action  in  her 
own  sole  and  separate  right  for  all  wages,  salary,  profits, 
compensation  or  other  remuneration  for  which  she  may  ren- 
der work,  labor  or  services,  or  which  may  be  derived  from 
any  trade,  business  or  occupation  carried  on  by  her,  and  her 
husband  shall  have  no  right  of  action  therefor  unless  she  or 
he  with  her  knowledge  and  consent  has  otherwise  expressly 
agreed  with  the  person  obligated  to  pay  such  wages,  salary, 
profits,  compensation  or  other  remuneration.  In  any  action 
or  proceeding  in  which  a  married  woman  or  her  husband 
shall  seek  to  recover  wages,  salary,  profits,  compensation  or 
other  remuneration  for  which  such  married  woman  has  ren- 
dered work,  labor,  or  services  or  which  was  derived  from 
any  trade,  business  or  occupation  carried  on  by  her  or  in 
which  the  loss  of  such  wages,  salary,  profits,  compensation  or 
other  remuneration  shall  be  an  item  of  damage  claimed  by 
a  married  woman  or  her  husband,  the  presumption  of  law 
in  all  such  cases  shall  be  that  such  married  woman  is  alone 
entitled  thereto,  unless  the  contrary  expressly  appears." 

This  statute  seemingly  nullifies  the  decision  in  UransJcy  v. 
Dry  Docl,  East  Broadway  &  Battery  R.  B.  Co.,  118  K  Y. 
304,  308,  wherein  it  was  held  that  the  presumption  obtained 
in  favor  of  the  husband,  and  that  "  when  she  seeks  to  recover 
such  damages,  the  complaint  must  contain  an  allegation  that 
for  some  reason  she  is  entitled  to  the  fruits  of  her  own  labor." 

Husband  or  wife  vs.  the  other  for  personal  injuries.— 
*'  ]\ray  husband  and  Avife,  in  this  State,  sue  each  other 
in  a  civil  action  to  recover  damages  for  assault  and  bat- 
tery ?     .     .     . 

"  It  is  well  settled  that  at  common  law  neither  could  main- 
tain such  an  action  against  the  other.  Although  courts  of 
equity,  for  many  purposes,  treated  husband  and  wife  as  per- 
sons of  distinct  legal  existence,  as  the  civil  law  treated  them, 


iNTRODIJCTIOiSr.  25 

capable  of  having  separate  estates,  debts  and  interests,  the 
common  law  inflexibly  incorporated  and  consolidated  the  legal 
identity  of  the  wife  with  that  of  her  hnsband,  and  denied  the 
right  of  the  one  to  sue  the  other,  technically  on  the  ground 
of  the  legal  fiction  of  unity.  Eef erring  to  actions  of  this 
nature  between  husband  and  wife,  Mr,  Reeve  (Dcm.  Eel., 
4th  ed.,  p.  93)  remarks:  'There  is  no  doubt  but  that  there 
are  cases  in  which  a  battery  by  the  husband  of  the  wife  may 
be  justified  on  the  ground  of  absolute  necessity  to  repel  an 
injury  offered  by  her;  and  it  is  equally  true  that  a  battery 
of  the  husband  by  the  wife  may  be  justified  on  the  same 
grounds.  The  nature  of  the  connection  between  them  is 
such,  that  no  atrocity  of  conduct  in  this  respect  can  give 
either  a  right  to  an  action  to  recover  damages.' 

"  Public  policy,  however,  quite  as  much  as  the  convenient 
fiction  of  unity,  has  influenced  .  .  .  courts  ...  in 
their  conclusions.  As  Mr.  Schouler  (Dom.  Eel.,  5th  ed.,  §  52) 
says :  '  This  disability  of  the  spouses  to  sue  one  another  is 
not  merely  the  technical  one  that,  under  the  old  procedure, 
husband  and  wife  must  join,  but  is  founded  on  the  principle 
that  husband  and  wife  are  one.  There  is  sound  policy,  more- 
over, in  discouraging  the  pair  from  making  of  their  matri- 
monial bickerings  a  cause  of  action  for  damages  against  one 
another.'  .  .  .  But,  when  it  was  sought  to  carry  the 
rule  of  unity  to  its  logical  consequence,  in  Wenman  v.  Ash^ 
13  C.  B.  836,  an  action  for  libel,  the  defendant  contending 
that  there  was  no  publication,  because  the  sending  a  defama- 
tory letter  to  the  plaintiff's  wife  was  like  sending  it  to  the 
plaintiff  himself,  the  court  demurred,  and  said :  '  In  the  eye 
of  the  law,  no  doubt,  man  and  wife  are  for  many  purposes 
one;  but  that  is  a  strong  figurative  expression,  and  cannot 
be  dealt  with  as  that  all  the  consequences  must  follow  which 

would  result  from  its  being  literally  true.' 

*  *  *  *"*  *  * 

"  .  .  .  The  learned  judge  in  Fitzgerald  v.  Quann,  109 
IsT.  Y.  441,  says :  '  Statutes  changing  the  common  law  must 
be  strictly  construed,  and  that  the  common  law  must  be  held 


26  iNTKODUCTIOISr. 

no  further  abrogated  than  the  clear  import  of  the  language 
used  in  the  statutes  absolutel,y  requires.  However  much  mod- 
ern judges  might  sometimes  be  inclined  to  doubt  the  beneficial 
results  to  be  derived  from  an  always  strict  adherence  to  the 
rule,  .  .  .  yet  the  rule  itself  is  too  securely  and  firmly 
established  and  grounded  in  our  jurisprudence  to  be  altered 

other  than  by  legislative  interference.' 

•jt  *  4f  *  *  *  * 

"  In   1882,   a  General   Term  of  the  Supreme  Court,   in 

Schultz  V.  SchuUz,  27  Hun,  2G,  influenced  by  the  conviction 

that  an  assault  by  the  husband  of  the  wife  was  '  in  violation 

of  the  laws  of  God  and  man,'     .     .     .     recognized  the  right 

of  the  wife  to  sue  her  husband  in  such  an  action, 

Tho  Court  of  Appeals  (89  Is.  Y.  644)  reversed  this  decision, 

without  opinion. 

******* 

"The  Domestic  Kelations  Law  of  189G,  chapter  272,  has 
rej)ealed  in  toto  the  old,  familiar  married- woman's  acts  of 
1848  (ch.  200),  1849  (ch.  375),  1860  (ch.  90),  1862 
(ch.  172),  and  1890  (ch.  51),  bearing  more  particularly  on 
the  subject. 

''  Section  27  of  the  Domestic  Relations  Law  provides  that 
'  A  married  woman  has  a  right  of  action  for  an  injury  to  her 
person,  property  or  character,  or  for  an  injury  arising  out  of 
the  marital  relation,  as  if  unmarried.'  At  first  glance  this 
provision  may  seem  broad  enough  to  permit  a  wife  to  sue  her 
husband  in  an  action  for  damages  for  personal  injuries.  To 
say  that  her  rights  in  such  cases  are  co-extensive  with  the 
rights  of  unmarried  w^omen,  is  not  to  say  that  her  rights,  in 
cases  of  personal  injury,  include  actions  against  her  husband, 
because  the  rule  of  unity  can  in  no  wise  enter  in  the  case  of 
unmarried  women,  and  the  husband's  common-law  right  of 
exempiion  is  a  factor  to  be  considered.  The  rule  of  unity 
worked  both  ways.  Can  it  be  said  that  under  the  present 
law  a  husband  has  a  right  of  action  against  his  wife  for  per- 
sonal injuries?  The  law  has  certainly  not  removed  his  dis- 
ability in  this  regard,  even  should  it  be  held  that  the  wife's 


Introduction.  27 

right  of  exemption  has  been  removed  under  the  broad  state- 
ment, in  the  same  section,  that  '  she  is  liable  for  her  wrongful 
or  tortious  acts.' 

"  The  fact  that  personal  injuries  are  gi'ouped  with  injuries 
to  the  wife's  property  can  not  justify  the  conclusion  that  her 
rights,  in  cases  of  personal  injuries,  are  as  broad  and  inclusive 
as  are  her  rights  in  cases  of  injuries  to  her  property.  The 
powers  and  rights  of  a  married  woman,  in  respect  to  her  prop- 
erty, are  very  particularly  set  forth  in  section  21  of  the 
Domestic  Relations  Law,  and  the  intention  of  the  Legisla- 
ture to  abrogate  the  rule  of  unity  in  such  cases  is  clear  and 
unmistakable:  'A  married  woman  has  all  the  rights  in 
respect  to  property,  real  or  personal,  and  the  acquisition,  use, 
enjoyment  and  disposition  thereof,  and  to  make  contracts  in 
respect  thereto  wdth  any  person,  including  her  husband,  and 
to  carry  on  any  business,  trade  or  occupation,  and  to  exercise 
all  powers  and  enjoy  all  rights  in  respect  thereto  and  in 
respect  to  her  contracts,  and  be  liable  on  such  contracts,  as  if 
she  were  unmarried.'  The  Legislature  evidently  concluded 
that  the  expression  any  person  was  not  broad  enough  to  in- 
clude the  husband. 

"  With  the  earlier  married-w^oman's  acts  now  things  of  the 
past,  and  the  codification  of  the  leading  provisions  of  those 
acts  in  the  present  Domestic  Relations  Law  before  us,  it  must 
still  be  concluded  that  the  Legislature  has  not,  up  to  the  pres- 
ent time,  abrogated  the  old  common-law  rule  of  unity  so  as 
to  permit  either  party  to  the  marital  relation  to  sue  the  other 
in  a  civil  action  for  personal  injuries."  Author's  article  on 
Assault  and  Battery,  III.  University  Law  Review,  67  and 
108. 

"  If  such  a  cause  of  action  exists,  others  do.  If  the  wife 
can  sue  the  husband,  he  can  sue  her.  If  an  assault  was 
actionable,  then  would  slander  and  libel  and  other  torts  be. 
Instead  of  settling,  a  divorce  would  very  much  unsettle  all 
matters  between  married  parties.  The  private  matters  of  the 
whole  period  of  married  existence  might  be  exposed  by  suits. 
The  statute  of  limitations  could  not  cut  off  actions,  because 


28  Introduction. 

during  coverture  the  statute  would  not  run.  With  divorce? 
as  common  as  they  are  now-a-days,  there  would  be  new  har- 
vests of  litigation.  If  such  a  precedent  was  permitted,  we 
do  not  see  why  any  wife  surviving  the  husband  could  not 
maintain  a  suit  against  his  executors  or  administrators  for 
defamation,  or  cruelty,  or  assault,  or  deprivations  that  she 
may  have  wrongfully  suffered  at  the  hands  of  the  husband ; 
and  this  would  add  a  new  method  by  which  estates  could  be 
plundered.  We  believe  the  rule,  which  forbids  all  such  oppor- 
tunities for  lawsuits  and  speculations,  to  be  wise  and  salutary 
and  to  stand  on  the  solid  foundations  of  the  law."  Abbott 
V.  Abbott,  67  Me.  304.  See  also  Abbe  v.  Abbe,  22  App.  Div. 
483. 

Corporations. —  The  old  idea  that  an  action  ex  delicto  will 
not  lie  against  a  corporation,  being  an  artificial  person,  is 
long  since  exploded. 

"  It  was  formerly  supposed  that  a  corporation  aggregate 
could  not  commit  an  actionable  tort,  and  that  no  action  sound- 
ing in  tort  would  lie  against  such  a  corporation.  This  con- 
clusion rested  upon  the  idea  that  a  corporation  is  an  artificial 
being,  created  by  the  sovereign,  and  endowed  by  the  sovereign 
with,  power  to  do  certain  things,  and  none  other. 
The  judges  were  accustomed  to  reason  that  a  corporation  can 
act  only  in  the  mode  pointed  out  in  its  charter; 
and  that  wlien  those  who  have  its  management  or  control,  or 
who  act  for  it  in  a  given  particular,  step  beyond  the  author- 
ization of  the  charter  in  doing  an  act,  it  is  not  the  act  of  the 
corporation,  but  is  their  own  individual  act.  ...  As 
corporations  multiplied,  it  was  seen  that  intolerable  wrongs 
would  be  done,  if  men  could,  by  clothing  themselves  with  the 
immimities  of  corporate  organization,  commit  wrongs  without 
being  answerable  for  them,  for  which  they  would  be  answer- 
able if  they  had  committed  them  in  their  natural  capacities. 
The  courts,  therefore,  while  not  denying  or  repudiating  this 
fiction,  and  in  the  full  face  of  its  logical  results,  have  been 
obliged  to  find  their  way  out  of  the  difficulty  as  best  they 


Introduction.  29 

could ;  and  the  result  is,  that  it  is  now  well-settled,  within 
certain  limits,  both  as  to  private  and  municipal  corporations, 
that  whenever  the  agent  of  a  corporation,  proceeding  within 
the  general  scope  of  its  powers  and  of  the  powers  delegated 
by  it  to  him,  commits  a  wrong,  the  corporation  must  pay  dam- 
ages to  the  person  injured,  just  as  a  natural  person  would 
be  compelled  to  do  under  like  circumstances."  Thompson's 
Com.  on  the  Law  of  Corp.,  §  6275. 

"  A  corporation  is  liable  to  the  same  extent  and  under  the 
same  circumstances  as  a  natural  person  for  the  consequences 
of  its  wrongful  acts,  and  will  be  held  to  respond  in  a  civil 
action  at  the  suit  of  an  injured  party  for  every  grade  and 
description  of  forcible,  malicious  or  negligent  tort  or  wrong 
which  it  commits,  however  foreig-n  to  its  nature  or  beyond  its 
granted  powers  the  wrongful  transaction  or  act  may  be." 
N.  Y.  &  N.  H.  R.  R.  Co.  v.  Sclmyler,  34  K  Y.  30,  49. 

May  a  corporation  be  held  liable  in  an  action  for  slander?  y 
The  rule  of  liability  as  enunciated  in  N.  Y.  &  N.  11.  R.  R. 
Co.  V.  Schuyler  (supra)  certainly  seems  broad  enough  to  in- 
clude such  actions.  Yet  it  is  stated  in  Eichner  v.  Bowery 
Bank,  24  App.  Div.  63,  that  a  corporation  cannot  be  made 
liable  in  an  action  to  recover  damages  for  slander,  apparently 
because  "  The  corporation  itself  could  not  talk." 

"  A  corporation  can  act  only  by  or  through  its  officers  or 
agents,  and  as  there  can  be  no  agency  to  slander,  it  follows 
that  a  corporation  cannot  be  guilty  of  slander.  It  has  not  the 
capacity  for  committing  that  wrong.  If  an  officer  or  an  agent 
of  a  corporation  is  guilty  of  slander  he  is  personally  liable, 
and  no  liability  results  to  the  corporation."  Townshend  on 
Slander  and  Libel,  §  265. 

"  A  corporation  will  not,  it  is  submitted,  be  liable  for  any 
slander  uttered  by  an  officer,  even  though  he  be  acting  hon- 
estly for  the  benefit  of  the  company  and  within  the  scope  of 
his  duties,  unless  it  can  be  proved  that  the  corporation 
expressly  ordered  and  directed  that  officer  to  say  those 
very  words,  for  a  slander  is  a  voluntary  tortious  act  of  the 
speaker."     Odgers  on  Libel  and  Slander,  p.  368. 


30  Intkoduction. 

Such  conclusion  savors  of  retrogression  both  in  mode  of 
reasoning  and  in  manner  of  consideration,  and  rests  too  lit- 
erally upon  the  idea  that  a  corporation  is  an  intangible,  ideal 
person.  It  is  inconsistent  with  the  rule  laid  down  in  N.  Y. 
&  N:  II.  R.  E.  Co.  V.  Schuyler,  34  N.  Y.  30,  49,  and  also 
with  the  decision  of  the  Court  of  Appeals  in  analogous  cases. 
If  a  corporation  cannot  talk,  neither  can  it  write  or  strike, 
yet  our  Court  of  Appeals  has  held  corporations  liable  in 
actions  of  libel,  assault  and  battery,  malicious  prosecution, 
and  conspiracy.  "  No  good  reason  can  be  presented  why  a 
corporation  should  not  be  held  liable  in  a  proper  case  for 
malicious  prosecution.  Actions  for  libel,  for  assault  and  for 
wilful  trespasses,  in  all  of  which  the  intent  of  the  mind  is  an 
essential  element,  have  been  successfully  prosecuted  against 
corporations  and  the  recovery  upheld  by  the  courts,  and  no 
distinction  can  be  made  between  the  principle  which  under- 
lies that  class  of  actions  and  an  action  for  malicious  prose- 
cution. No  action  for  malicious  prosecution  against  a  cor- 
poration has  been  reported  in  this  State,  but  elsewhere 
the  courts  have  sustained  them.  {Fenton  v.  ^Y^lson  Seiving 
Machine  Co.,  9  Phil.  189  ;  Goodspeed  v.  East  Haddam  Bank, 
22  Conn.  535;  Vaiice  v.  Erie  Railroad  Co.,  3  Vroom,  334; 
Boogher  v.  Life  Assn.  of  America,  42  Am.  413.)  "We  concur 
in  the  reasoning  and  decision  of  these  cases."  Morton  v. 
Metropolitan  Life  Ins.  Co.,  84  Hun,  366,  367,  and  affirmed 
by  the  Court  of  Appeals  (103  N.  Y.  645)  on  the  opinion 
below.  See  also  Buffalo  Luhricating  Oil  Co.  v.  Standard 
Oil  Co.,  106  K  Y.  669. 

If  a  corporation  can  be  held  liable  in  an  action  for  ma- 
licious prosecution,  no  good  reason  appears  why  it  should 
be  exempt  from  liability  in  an  action  for  slander,  because  the 
nature  of  the  WTong  is  not  unlike  malicious  prosecution. 
The  real  offence  in  each  case  consists  of  damage  to  reputa- 
tion, and  is  effected  by  the  same  means,  viz.,  speech.  In  each 
case  the  plaintiff  claims  injury  to  character  by  reason  of 
improper  charges  or  accusation,  the  one  being  defamation  in 
court,  and  the  other,  in  pais,  and  recovery  for  the  one  bars 


Introduction.  31 

recovery  for  the  other.  "  In  an  action  for  malicious  prose- 
cution, the  plaintiff  is  entitled  to  recover  damages  not  only 
for  his  unlawful  arrest  and  imprisonment,  and  for  the  ex- 
penses of  his  defence,  but  for  the  injury  to  his  fame  and 
character  by  reason  of  the  false  accusation.  The  latter  indeed 
is,  in  many  cases,  the  gravamen  of  the  action.  An  accusation 
of  crime,  made  under  the  forms  of  law,  or  on  the  pretence  of 
bringing  a  guilty  man  to  justice,  is  made  in  the  most  impos- 
ing and  impressive  manner,  and  may  inflict  a  deeper  injury 
upon  the  reputation  of  the  party  accused,  than  the  same  words 
uttered  under  any  other  circumstances.  The  most  appropri- 
ate remedy  for  the  calumny  in  such  cases,  is  by  the  action 
for  malicious  prosecution.  The  injured  party  can  not  be 
entitled  to  two  recoveries  for  the  same  cause,  and  a  recovery 
in  that  form  must,  therefore,  be  a  bar  to  a  subsequent  action 
of  slander,  for  the  same  identical  accusation."  Sheldon  v. 
Carpenter,  4  K  Y.  578,  579. 

A  corporation  cannot  do  anything  of  itself.  It  must  and 
always  does  act  through  its  officers  or  agents,  and  its  responsi- 
bility should  be  determined  not  by  what  the  artificial  body 
can  or  cannot  itself  do,  but  by  what  it  has  done  through  its 
agents,  "  acting  or  pretending  to  act  about  the  business  for 
which  the  organization  was  formed,  and  for  which  they  were 
appointed  agents."  (Thompson's  Com.  on  Law  of  Corp., 
§  6275). 

State  or  General  Government.—  "  Even  the  State  or  Gen- 
eral Government  may  be  guilty  of  individual  wrongs ;  for 
while  each  is  a  sovereignty,  it  is  a  corporation  also,  and  as 
such  capable  of  doing  wrongful  acts.  The  difficulty  here  is 
with  the  remedy,  not  with  the  right.  'No  sovereignty  is  sub- 
ject to  suits,  except  with  its  own  consent.  But  either  this 
consent  is  given  by  general  law,  or  some  tribunal  is  estab- 
lished with  power  to  hear  all  just  claims.  Or  if  neither  of 
these  is  done,  the  tort  remains ;  and  it  is  always  to  be  pre- 
sumed that  the  legislative  authority  will  make  the  proper 
provision  for  redress  when  its  attention  is  directed  to  the 


32  INTRODUCTION. 

injury,"     Cooley  on  Torts  (2d  ed.),  141.     See  also  Hill  v. 
U.  S^,  9  How.  386 ;    Bigby  v.  U.  S.,  103  Fed.  Rep.  597. 

Municipal  corporations. —  "  There  are  trv'o  kinds  of  duties 
which  are  imposed  upon  a  municipal  corporation :  One  is 
of  that  kind  which  arises  from  the  grant  of  a  special  power, 
in  the  exercise  of  which  the  municipality  is  as  a  legal  indi- 
vidual ;  the  other  is  of  that  kind  which  arises,  or  is  implied, 
from  the  use  of  political  rights  under  the  general  laAV,  in  the 
exercise  of  which  it  is  as  a  sovereign.  The  former  power  is 
private,  and  is  used  for  private  purposes ;  the  latter  is  public 
and  is  used  for  public  purposes;  (Lloyd  v.  The  Mayor,  5 
IST.  Y.  374.)  The  former  is  not  held  by  the  municipality  as 
one  of  the  political  divisions  of  the  State ;  the  latter  is.  In 
the  exercise  of  the  former  power,  and  under  the  duty  to  the 
public  which  the  acceptance  and  use  of  the  power  involves, 
a  municiiDality  is  like  a  private  corporation,  and  is  liable  for 
a  failure  to  use  its  power  well,  or  for  an  injury  caused  by 
using  it  badly.  But  where  the  power  is  intrusted  to  it  as 
one  of  the  political  divisions  of  the  State,  and  is  conferred 
not  for  the  immediate  benefit  of  the  municipality,  but  as  a 
means  to  the  exercise  of  the  sovereign  power  for  the  benefit 
of  all  citizens,  the  corporation  is  not  liable  for  nonuser,  nor 
for  misuser  by  the  public  agents;  (Eastman  v.  Meredith,  36 
IST.  H.  284.)  Where  the  duties  which  are  imposed  upon 
municipalities  are  of  the  latter  class,  they  are  generally  to 
be  performed  by  officers  who,  though  deriving  their  appoint- 
ment from  the  corporation  itself,  through  the  nomination  of 
some  of  its  executive  agents,  by  a  power  devolved  thereon  as 
a  convenient  mode  of  exercising  a  function  of  government, 
are  yet  the  oifieers,  and  hence  the  servants,  of  the  public  at 
large.  They  have  powers  and  perform  duties  for  the  benefit 
of  all  the  citizens,  and  are  not  under  the  control  of  the  munici- 
pality whicli  has  no  benefit  in  its  corporate  capacity  from 
the  performance  thereof.  They  are  not  then  the  agents  or 
servants  of  the  municipal  cori)oration,  but  are  public  officers, 
agents  or  servants  of  the  public  at  large,  and  the  corporation 


Intkoductio:n^.  33 

is  not  responsible  for  their  acts  or  oinissions,  nor  for  the  acts 
or  omissions  of  the  subordinates  by  them  appointed ;  (Fisher 
V.  Boston,  104  Mass.  87.)  And  where  a  municipal  corpora- 
tion elects  or  appoints  an  officer,  in  obedience  to  an  act  of 
the  legislature,  to  perform  a  public  service,  in  which  the  cor- 
poration has  no  private  interest  and  from  which  it  derives  no 
special  benefit  or  advantage  in  its  corporate  capacity,  such 
officer  cannot  be  regarded  as  a  servant  or  agent  of  the  munici- 
pality, for  whose  negligence  or  want  of  skill  it  can  be  held 
liable.  It  has  appointed  or  elected  him,  in  pursuance  of  a 
duty  laid  upon  it  by  law,  for  the  general  welfare  of  the  in- 
habitants or  of  the  community.  (Hafford  v.  Neiv  Bedfo7'd, 
16  Gray,  297.)  He  is  the  person  selected  by  it  as  the  author- 
ity empowered  by  law  to  make  selections ;  but  when  selected 
and  its  j)ower  exhausted  he  is  not  its  agent,  he  is  the  agent 
of  the  public  for  whom  and  for  whose  purposes  he  was 
selected."    Maxmilian  v.  Mayor,  02  K  Y.  160,  164. 

"  It  would  seem  that,  in  so  far  as  municipal  corporations 
of  any  class,  and  however  incorporated,  exercise  powers  con- 
ferred on  them  for  purposes  essentially  public  —  purposes 
pertaining  to  the  administration  of  general  laws  made  to  en- 
force the  general  policy  of  the  state,  —  they  should  be  deemed 
agencies  of  the  state,  and  not  subject  to  be  sued  for  any  act 
or  omission  occurring  while  in  the  exercise  of  such  power, 
unless,  by  statute,  the  action  be  given ;  that,  in  reference'  to 
such  matters,  they  should  stand  as  does  sovereignty,  whose 
agents  they  are,  subject  to  be  sued  only  when  the  state,  by 

statute,  declares  they  may  be. 

*  *  *  -x-  *  *  * 

"  In  so  far,  however,  as  they  exercise  powers  not  of  this 
character,  voluntarily  assumed  —  jDowers  intended  for  the 
private  advantage  and  benefit  of  the  locality  and  its  inhabit- 
ants,—  there  seems  to  be  no  sufficient  reason  why  they 
should  be  relieved  from  that  liability  to  suit  and  measure  of 
actual  damage  to  which  an  individual  or  private  corporation 
exercising  the  same  powers  for  a  purpose  essentially  private 
would  be  liable."  City  of  Galveston  v.  Posnainsky,  62  Texas, 
118,  127. 

3 


34  .  Introdlctiois^ 

"  The  corporation  of  the  Citj  of  Xew  York  possesses  two 
kinds  of  jiowers,  one  governmental  and  public,  and  to  the 
extent  thej  are  held  and  exercised,  is  clothed  with  sover- 
eignty —  the  other  private,  and  to  the  extent  they  are  held 
and  exercised,  is  a  legal  individual.  The  former  are  given 
and  used  for  public  purposes,  the  latter  for  private  purposes. 
While  in  the  exercise  of  the  former,  the  corporation  is  a 
municipal  government,  and  while  in  the  exercise  of  the  latter, 
is  a  corporate,  legal  individual. 

"  The  distinction  between  these  two  classes  of  powers  is 
obvious,  and  has  been  frequently  recognized  and  established 
in  our  courts.  (Wilson  v.  Tlie  Mayor,  etc.,  of  New  YorJc, 
1  Denio,  595  ;  Bailey  v.  Same,  3  Hill  R.  531 ;  S.  C.  opin.  of 
Hand  Senator-,  2  Denio,  450 ;  Rochester  White  Lead  Co.  v. 
The  City  of  Rochester,  3  Comst.  R.  463.) 

"  Although  the  difference  between  the  two  kinds  of  powers 
is  plain  and  marked,  yet  as  they  approximate  each  other,  it 
is  oftentimes  difficult  to  ascertain  the  exact  line  of  distinction. 
"When  that  line  is  ascertained,  it  is  not  difficult  to  determine 
the  rights  of  parties,  for  the  rules  of  law  are  clear  and  explicit 
which  establish  the  rights,  immunities  and  liabilities  of  the 
appellants  when  in  the  exercise  of  each  class  of  powers.  All 
that  can  be  done  probably  with  safety  is,  to  determine,  as  each 
case  arises,  under  which  class  it  falls."  Lloyd  v.  The  Mayor, 
etc.,  of  New  York,  5  K  Y.  369,  374. 

Charitable  corporations. —  Are  charitable  corporations 
liable  for  the  conduct  of  their  servants  in  the  selection  of 
whom  they  have  exercised  proper  care  ?  The  decisions,  gen- 
erally and  for  various  reasons,  seem  to  allow  to  this  class  )f 
corporations  a  peculiar  exemption  from  liability.  Some, 
determining  that  the  corporation  is  exercising  governmental 
powers,  deny  liability  on  the  ground  that  the  government  is 
})rincipal  or  master  and  that  the  rule  of  respondeat  superior 
in  such  case  has  no  application.  {City  of  Richmond  v. 
Long's  Adm'rs,  17  Grat.  375 ;  Benton  v.  Trustees  of  Boston 
City  Hospital,  140  Mass.  13 ;  Fire  Insurance  Patrol  v.  Boyd, 


Intkoduction.  35 

120  Pa.  St.  624.)  Others  exempt  from  liability  on  the 
additional  ground  tliat  it  is  unconscionable  to  divert  trust 
funds.  "  A  public  charity,  whether  incorporated  or  not,  is 
but  a  trustee,  and  is  bound  to  apply  its  funds  in  furtherance 
of  the  charity  and  not  otherwise.  This  doctrine  is  hoary 
with  antiquity  and  prevails  alike  in  this  country  and  in 
England,  where  it  originated  as  early  as  the  reign  of  Edward 
v.,  and  it  was  announced  in  the  Year  Book  of  that  period. 

"  .  .  .  Not  only  is  a  trustee  for  a  public  or  private  use 
not  permitted  to  misapply  the  trust  funds  committed  to  his 
care,  but  if  he  convert  them  to  his  owti  use  the  law  pimishes 
him  as  a  thief.  IIow  much  better  than  a  thief  would  be  the 
law  itself,  were  it  to  apply  the  trust  funds  contributed  for 
a  charitable  object,  to  pay  for  injuries  resulting  from  the 
torts  or  negligence  of  the  trustee  ? "  Fire  his.  Patrol  v. 
Boyd,  120  Pa.  St.  624,  647;  McDonald  v.  General  Hospital, 
120  Mass.  432.  The  majority,  however,  place  the  exemption 
from  liability  squarely  on  the  convenient  ground  of  public 
policy.  "  On  the  whole,  substantial  justice  is  best  served  by 
making  a  master  responsible  for  the  injuries  caused  by  his 
servant  acting  in  his  service,  when  set  to  work  by  him  to 
prosecute  his  private  ends,  with  the  expectation  of  deriving 
from  that  work  private  benefit.  This  has  at  times  proved  a 
liard  rule,  but  it  rests  upon  a  public  policy  too  firmly  settled 
to  be  questioned. 

"  We  are  now  asked  to  apply  this  rule,  for  the  first  time, 
to  a  class  of  masters  distinct  from  all  others,  and  who  do 
not  and  cannot  come  within  the  reason  of  the  rule.  In  other 
words,  we  are  asked  to  extend  the  rule  and  to  declare  a  new 
public  policy  and  say:  On  the  whole  substantial  justice  is 
best  served  by  making  the  owners  of  a  public  charity,  involv- 
ing no  private  profit,  responsible,  not  only  for  their  own 
wrongful  negligence,  but  also  for  the  wrongful  negligence  of 
the  servants  they  employ  only  for  a  public  use  and  a  public 
benefit.  We  think  the  law  does  not  justify  such  an  exten- 
sion of  the  rule  of  respondeat  superior.     It  is  perhaps  im- 


36-  Intkoduction. 

material  whether  ^\e  say  the  public  policy  which  supports 
the  doctrine  of  respondeat  superior  does  not  justify  such  ex- 
tension of  the  rule ;  or  say  that  the  public  policy  which  en- 
courages enterprises  for  charitable  purposes  requires  an 
exemption  from  the  operation  of  a  rule  based  on  legal  fiction, 
and  which,  as  applied  to  the  owners  of  such  enterprises,  is 
clearly  opposed  to  substantial  justice.  It  is  enough  that  a 
charitable  corporation  like  the  defendant  —  whatever  may 
be  the  principle  that  controls  its  liability  for  corporate  neg- 
lect in  the  jDerformance  of  a  corporate  duty  —  is  not  liable, 
on  grounds  of  public  policy,  for  injuries  caused  by  personal 
wrongful  neglect  in  the  performance  of  his  duty  by  a  servant 
whom  it  has  selected  with  due  care ;  but  in  such  case  the 
servant  is  alone  responsible  for  his  0T^•n  wrong."  Uearns  v. 
Wcderhury  Hospital,  QQ  Conn.  98;  Joel  v.  Woman's  Hos- 
pital, 89  Hun,  73. 

In  an  article  entitled  Liability  of  Charity  Hospital  for 
Xegligence  of  its  Employees,  The  Xcw  York  Law  Journal, 
in  its  issue  of  November  28,  1900,  says,  "  that  more  injury 
in  the  long  run  would  be  apt  to  result  from  entirely  exempt- 
ing charitable  corporations  from  liability  for  the  negligence 
of  their  servants  than  from  holding  them  to  the  ordinary  rule 
of  respo7ideat  superior.  Some  of  the  cases  have  drawn  an 
arbitrary  line,  making  '  charity '  hospitals  responsible  for 
negligence  in  the  original  selection  of  their  employees,  but 
exonerating  them  from  liability  beyond  that  point.  Such  dis- 
tinction substantially  amounts  to  judicial  legislation  and  we 
cannot  approve  of  its  practical  policy.  The  liability  of  a 
private  physician,  if  he  actually  undertake  a  case,  is  the 
same,  as  far  as  negligence  is  concerned,  whether  the  patient 
be  treated  charitably  or  for  compensation."  And  in  Glavin 
V.  Rhode  Island  Hospital,  12  R.  I.  411,  tlie  court  says: 
"  The  public  is  doubtless  interested  in  the  maintenance  of  a 
great  public  charity,  such  as  the  Rhode  Island  Hospital  is; 
but  it  also  has  an  interest  in  obliging  every  person  and  every 
corjDoration  which  undertakes  the  performance  of  a  duty  to 
perform  it  carefully,  and  to  that  extent  therefore  it  has  an 


Introduction.  37 

interest  against  exempting  any  sucli  person  and  any  such 
corporation  from  liability  for  its  negligences.  The  court 
cannot  undertake  to  say  that  the  former  interest  is  so 
supreme  that  the  latter  must  be  sacrificed  to  it.  "Whether  it 
shall  be  or  not  is  not  a  question  for  the  court,  but  for  the 
legislature." 

Such  exemption  may,  perhaps,  be  reasonable  in  those  cases 
"where  the  person  injured  is  at  the  time  of  the  injury  the 
recipient  of  the  charities  of  the  corporation,  but  quite  un- 
reasonable in  those  cases  where  the  person  injured  is  at  the 
time  of  the  injury  not  the  recipient  of  the  charities  of  the 
corporation.  Yet  it  was  held  in  Benton  v.  Trustees,  140 
Mass.  13,  that  an  action  for  damages  for  personal  injuries 
could  not  be  maintained  by  a  person  who  had  entered  the 
hospital  on  business,  and  was  injured  therein  by  reason  of 
the  unsafe  condition  of  the  stairs,  although  the  unsafe  con- 
dition was  caused  by  the  negligence  of  the  superintendent  of 
the  hospital. 

Actio  personalis  moritur  cum  persona,  i.  e.,  a  personal 
action  dies  with  the  person. 

"  Such  [civil]  actions  were  primarily  divided  into  two 
classes,  distinguished  as  actions  ex  contractu  and  ex  delicto. 
The  actions  known  as  detinue^  tresjoass,  trespass  on  the  case, 
and  replevin  were  those  used  in  causes  of  action  arising  from 
torts,  and  were  described  as  actions  ex  delicto.  Trespass  on 
the  case  was  the  appropriate  form  of  remedy  for  all  injuries 
to  person  or  property  which  did  not  fall  within  the  compass 
of  the  other  forms  of  action.  (3  Stephens'  Com.  449.)  At 
common  law,  originally,  all  actions  arising  ex  delicto  died 
with  the  person  by  whom  or  to  w^hom  the  WTong  was  done. 
Thus,  when  the  action  w^as  founded  on  any  maKeasance,  or 
misfeasance,  was  a  tort,  or  arose  ex  delicto,  such  as  trespass 
for  taking  goods,  etc.,  trover,  false  imprisomnent,  assault  and 
battery,  slander,  deceit,  diverting  a  water-course,  obstructing 
lights,  escape,  and  many  other  cases  of  the  like  kind,  where 
the  declaration  imputes  a  tort  done  either  to  the  person  or 


lA 


38  iNTBODUCTIOISr. 

property  of  anotlier,  and  the  ])lea  must  be  '  not  guilty/  the 
rule  was  'actio  peisonalis  moriiur  cum  persona.'  (1  Wms. 
on  Exrs.  G68.)"    Ilegcrich  v.  Keddie,  99  X.  Y.  258,  259. 

The  rule  does  not  extend  to  civil  death. — "  It  [Actio  per- 
sonalis moriiur  cum  persona]  has  h)ng  Ijeen  in  force  both  in 
England  and  this  country,  and  in  this  state  has  received 
legislative  approval  in  so  far  as  causes  of  action  for  libel, 
slander  and  assault  and  battery  are  concerned,  but  our 
decisions  have  not  extended  the  rule  to  the  ci\-il  death  of 
either  persons  or  corporations.  jSTor  has  the  language  of  our 
statute  which  authorizes  the  continuance  of  certain  actions 
for  moneys  against  the  executors  and  administrators  of 
wrongdoers,  but  excepts  actions  for  libel,  slander,  assault  and 
battery  and  false  imprisonment,  been  held  to  include  the  civil 
death  of  either  individuals  or  corporations,  and  it  is  suffi- 
cient for  our  present  purpose  to  say  that  such  an  intent  on 
the  part  of  the  legislature  cannot  be  spelled  out  of  the  lan- 
guage employed  by  it."  Shayne  v.  Evening  Post  Publishing 
Co.,  IGS  K  Y.  70,  78. 

Statutory  modifications  of  the  rule :  in  England. — "  The 
<^^-y  first   amendment   was   made    as   long    ago   as    1330,    by  the 
statute  4  Ed.  III.,  c.  7,  of  which  the  English  version  runs 
thus : 

^''  Item,  whereas  in  times  past  executors  have  not  had 
actions  for  a  trespass  done  to  their  testators,  as  of  the  goods 
and  chattels  of  the  same  testators  carried  away  in  their  life, 
and  so  such  trespasses  have  hitherto  remained  unpunished; 
it  is  enacted  that  the  executors  in  such  cases  shi^11  hnve  an 
action  af^-ainst  the  treapnsaers  if^  recover  damages  in  like  Tnnn- 
mi  as  they,  whose  executors  they  be,  should  have  had  if  they 
were  in  life. 

"  Then  by  3  &  4  Will.  IV.,  c.  42  (A.  D.  1833)  actionable 
jjl.llirio.s  to  the  real  pstntfi.  of  any  person  committed  within 
six  calendar  months  before  his  death  may  be  sued  upon  by 


Introduction.  39 

his  personal  representatives,  for  the  benefit  of  his  personal 
estate,  within  one  year  after  his  death:  and  a  man's  estate 
can  be  made  liable,  through  his  personal  representatives,  for 
wrongs  done  by  him  within  six  calendar  months  before  his 
death  '  to  another  in  respect  of  his  property,  real  or  per- 
sonal.' In  this  latter  case  the  action  must  be  brought  against 
the  wrongdoer's  representatives  within  six  months  after  they 
have  entered  on  their  office. 

"  IvTothing  in  these  statutes  affects  the  case  of  a  personal 
injury  causing  death,  for  which  according  to  the  maxim  there 
is  no  remedy  at  all. 

"  Railway  accidents,  towards  the  middle  of  the  present 
century,  brought  the  hardship  of  the  common  law  rule  into 
prominence.  A  man  who  was  maimed  or  reduced  to  im- 
becility by  the  negligence  of  a  railway  company's  servants 
might  recover  heavy  damages.  If  he  died  of  his  injuries, 
or  was  killed  on  the  spot,  his  family  might  be  ruined,  but 
there  was  no  remedy.  This  state  of  things  brought  about 
the  passing  of  Lord  Campbell's  Act  (9  &  10  Vict.  c.  93, 
A.  D.  1846),  ...  It  confers  a  right  of  action  on  the 
personal  representatives  of  a  person  whose  death  has  been 
caused  by  a  wrongful  act,  neglect,  or  default  such  that  if 
death  had  not  ensued  that  person  might  have  maintained  an 
action ;  but  the  right  conferred  is  not  for  the  benefit  of  the 
personal  estate,  but  '  for  the  benefit  of  the  wife,  husband, 
parent  and  child  of  the  person  whose  death  shall  have  been 
so  caused.' 

"  By  an  amending  Act  of  1864,  27  &  28  Vict.  c.  95,  if 
there  is  no  personal  representative  .  .  .  ,  or  if  no  action 
is  brought  by  personal  representatives  within  six  months,  all 
or  any  of  the  persons  for  whose  benefit  the  right  of  action 
is  given  by  Lord  Campbell's  Act  may  sue  in  their  own 
names."    Pollock  on  Torts  (7th  ed.),  64-67. 

Statutory   modifications   of   the    rule:   in   New   York. — 

"  Under  the  clause  of  the  Constitution  making  the  rules  of 
the  conmion  law  the  law  of  the  State,  it  must  be  held  that 


40  Introductiox. 

these  rules  still  determine  tlio  s\irvivaLility  of  actions  for 
torts,  except  where  the  law  has  been  sjxicially  modified  or 
changed  bj  statute."  Ilegerich  v.  Keddie,  99  N.  Y.  258, 
260. 

On  April  7,  1801,  the  Legislature  enacted,  "  That  execu- 
tors and  administrators  shall  have  actions  of  trespass  for  tak- 
ing and  carrying  away  the  goods  of  their  testator  or 
intestate  in  his  lifetime,  and  that  any  person,  his  executors 
or  administrators  shall  have  the  like  actions  of  trespass 
against  the  executors  or  administrators  of  any  testator  or 
intestate,  who  in  his  lifetime  shall  have  wasted,  destroyed, 
taken  or  carried  away  or  converted  to  his  own  use  the  goods 
or  chattels  of  any  such  person,  and  shall  have  the  like  process, 
judgment  and  execution  as  in  other  actions  against  executors 
and  administrators."     Laws  of  1801,  ch.   174, 

Referring  to  the  above  act,  Kent,  Ch.  J.,  says :  "  The 
statute  .  .  .  gives  to  executors,  an  action  of  trespass 
[tZe  honis  asportatis'],  for  taking  and  carrying  away  the  goods 
of  their  testator,  in  his  lifetime.  This  statute  was  borrowed 
from  4  Ed.  III.  c.  7,  which  had  made  a  similar  provision ; 
and  by  the  equity  and  liberal  construction  of  that  statute,  it 
has  been  extended  to  almost  every  injury,  done  to  the  per- 
sonal estate  of  the  testator  before  his  death.  (Toller's  Law 
of  Ex.  121,  345.)  It  applies  to  wasting  and  destroying,  as 
well  as  to  taking  and  carrying  away  the  goods  of  the  testator. 
Our  act  goes  further,  and  makes  this  conclusion  inevitable. 
It  gives  to  executors  an  action  of  trespass  against  the  execu- 
tors and  administrators  of  any  person,  who  in  his  lifetime 
had  wasted,  destroyed,  taken  or  carried  away  the  personal 
property  of  their  testator."  Snider  v.  Croy,  2  Johns.  Rep. 
227,  229. 

While  chapter  174  of  the  Laws  of  1801  was  probably  re- 
pealed by  the  act  of  1813,  the  portion  of  that  act,  above 
quoted,  was  re-enacted  verbatim  in  the  Revised  Laws,  passed 
April  13,  1813,  pursuant  to  an  act  entitled,  "An  Act  for 
Publishing  the  Laws  of  this  State."  See  Vol.  I.,  p.  311,  of 
the  Revised  Laws  of  Xew  York. 


1. 


Introduction.  41 

"The  Revised  Laws  (Vol.  1,  p.  311)     .     .     .     enlarged 
the  scope  of  the  statute  of  4th  Edward  III,  and  provided  for 
actions  by  and  against  executors  and  administrators  for  prop- 
erty taken  and  converted  by  the  testator  or  intestate  during 
his  lifetime.     Under  this  condition  of  the  law  the  provisions 
of  the  Revised  Statutes  [2  R.  S.  447,  §§  1-2]  were  enacted 
in  1828,     ..."    Hegerich  v.  Keddie,  99  K  Y.  258,  261. 
"  For  wrongs  done  to  the  property,  rights  or  interests_of 
j{j^  ^-  another,  for  which  an  action  miglit  he  ■maintainprl  fl^ln.at-tliP  ^f*^^ 
^J^     wrong-doej*,    such    action    may   b^   brnngVit   by   tlia   porcmi  ,^^   i^ 
jy,  injured,  or  after  his  death,  by  his  executors  or_aiiininisti:ata£3^   ,ot-^^  «j2^ 

'^"'''^      against  such  wrong-doer,   and   after   his  death  ^agaiiist-hie     ^ 

K^      executors  or  administrators^  in  the  same  manner  and  with   '     ^^ 
the  like  effect  in  all  respects,  as  actions  founded  upon  con-    *'"*^'"^ 
tracts.  '\>^<^*^  ^^-^y**"  *^ 

"  But  the  preceding  section  shall  not  extend  to  actions  for ^^^j^  « 
slander,  for  libel,  or  to  actions  of  assault  and  battery,  or  false  -^auJi-i . 
imprisonment,  nor  to  actions  on  the  case  for  injuries  to  the    \^  ^^  jl 
person  of  the  plaintiff,  or  to  the  person  of  the  testator  or  •  __ 

intestate  of   any  pyppntnr  <yv   gHmim'strator."      2    R.    S.    447, 

§§    1-2.  J^^ce**-*^'^     ^-S^    PT- 

"  If  the  language  of  tlie  statute  ...  be  collocated 
and  read  according  to  its  plain  meaning  and  intent,  the  fol- 
lowing sentence  would  seem  to  be  the  result :  Actions  by  and 
against  executors  and  administrators  for  wrongs  done  to  the 
property  rights,  or  interests  of  their  intestate  or  testator  are 
hereby  authorized,  but  so  far  as  such  wrongs  have  heretofore 
been  remediable  by  actions  on  the  case  for  injuries  to  the 
person  of  the  plaintiff,  or  to  the  person  of  the  intestate  or 
testator  of  any  executor  or  administrator,  they  shall  not  sur- 
vive the  death  of  the  person  to  whom  or  by  whom  the  wrong 
is  done."    Hegerich  v.  Keddie,  99  K  Y.  258,  262.  ^'^^LSWvx,. 

Chapter  450,  of  the  Laws  of  1847,  for  the  first  time  pro- 
vided  for  actions  to  recover  damages  for  injuries  causijig  ' 

death  by  wrongful  act.  ne<ylf^fit  cr  rlp.fa-iilLr-.aa,fQllQ-H:a.:  ^jv-c^U^^«^ 

"  §  1.  Whenever  the  death  of  a  person  shall  be  caused  by    ^  1 1  "^  *» 
wrongful  act,  neglect  or  default,  and   the  act,  neglect  or  ^^^_,^  ^ 


^d.  Cc^--^M^' 


CUj 


42  Introduction. 

default,  is  such  as  would  (if  death  had  not  ensued)  have 
entitled  the  party  injured  to  maintain  an  action  and  recover 
damages,  in  respect  thereof,  then  and  in  every  such  case,  the 
person  Avho,  or  the  corporation  which  would  have  been  liable, 
if  death  had  not  ensued,  shall  be  liable  to  an  action  for  dam- 
ages, notwithstanding  the  death  of  the  person  injured,  and 
although  the  death  shall  have  been  caused  under  such  cir- 
cumstances as  amount  in  law  to  felony. 

"  §  2.  Every  such  action  shall  be  brought  by  and  in  the 
names  of  the  personal  representatives  of  such  deceased  per- 
son, and  the  amount  recovered  in  every  such  action  shall  be 
for  the  exclusive  benefit  of  the  widow  and  next  of  kin  of 
such  deceased  person,  and  shall  be  distributed  to  such  widow 
and  next  of  kin  in  the  proportions  provided  by  law  in  rela- 
tion to  the  distribution  of  personal  property,  left  by  persons 
dying  intestate ;  and  in  every  such  action  the  jury  may  give 
such  damages  as  they  shall  deem  fair  and  just,  with  refer- 
ence to  the  pecuniary  injury  resulting  from  such  death  to  the 
wife  and  next  of  kin  of  such  deceased  person :  provided  that 
every  such  action  shall  be  commenced  within  two  years  after 
the  death  of  such  deceased  person." 

Chapter  25G,  of  the  Laws  of  1849.  amended  chapter  450, 
of  the  Laws  of  1847,  by  filing-  !]  maximum  amount  of  recov- 
ery in  siich  actions,  viz.,  "  The  jury  may  give  such  damages 
as  they  shall  deem  a  fair  and  just  compensation,  not  exceed- 
ing ,fiv;g_Jhousand_dollaig,  with  reference  to  the  pecuniary 
injuries  resulting  from  such  death  to  the  wife  and  next  of 
kin  of  such  deceased  person." 

Chapter  450,  of  the  Laws  of  1847,  was  further  amended 
by  chapter  78,  of  the  Laws  of  1870,  by  including  the  husband 
among  the  beneficiaries,  viz.,  "  The  amount  recovered  in 
every  such  action  shall  be  for  the  exclusive  benefit  of  the  hus- 
band or  widow  and  next  of  kin  of  such  deceased  person ;" 
and  also  by  adding  interest  to  the  damages  recovered,  viz., 
"  and  the  amount  of  damages  recovered  in  any  such  action 
shall  draw  interest  from  the  time  of  the  death  of  such 
deceased  person,  Avhich  interest  shall  be  added  to  the  verdict 
and  inserted  in  the  entry  of  judgment  in  such  action." 


Introduction.  4:3 

Such  was  the  law  in  New  York  do^vI^,  to  the  adoption  of   cX*.  y.^ 
the   Constitution  in   1894.  when  the  right  as  well  as  the      ^  y^^- 
amount  of  recovery  in  such  actions  were  placed  beyond  the 
reach  of  any  action  by  the  Legislature.     "  The  right  of  action 
now  existing  to  recover  damages  for  iniuries  resultin^n 
death,  shall  never  be  abrogated ;  and  the  amount  recoverable  '^f^-'^-^    _ 
shall  not  be  subject  to  any  statutory  limitation."     N.   Y.  <V-*-«*— *** 
Const.,  Art.  I.,  §  18.  ^  '"  "  j^  -Jf-^'^ 

Provisions  of  N.  Y.  Code  of  Civil  Procedure  in  actions  ^^^-^  *  T" 

for  death, —  "§  1902.   The  executor  or  administrator  of  a  c-r-r%~ij-'-**- 
decedent,  who  has  left,  him  or  her  surviving,  a  husband,  wife, 
or  next  of  kin,  may  maintain  an  action  to  recover  damages 
for  a  wrongful  act,  neglect,  or  default,  by  which  the  dece- 
dent's death  was  caused,  ajgairst  »  natural  person  who,  or  a 
corporation  whicj^.  would  have  been  liable  to  an  aoti^^  ^^ 
if\\rnr  of  tVip  dppprlpntj  by  rpflson  thereof,  if  death  had  not  i*,x«— y<^*-»^ 
ensued.      Such  an   action  must  be  commenced  ^yithin   two   i'Wv^-^  < 
ypqyg  after  the  decedent's  death.  C^^W    -"-c^^^rv— i    ^ 

"  §  1903.  Thft  damages  recovered  in  an  action,  brought  ,y,^xy-H-— 
as  prescribed  in  the  last  Rpr^tion^  arp  pxelusively  for  the  bfiii£-  ^^^^j^  a^ 
-fit  of  the  decedent's  hnsbmirl  or  wife,  and  next  of  kin;  and,"^^  -o^ 
when  they  are  collected,  they  must  be  distributed  by  tho  ,^  ^^^ 
plaintiff,  as  if  they  were  unbequeathed  assets,  left  in  ^^^  .^V^iSi 
hands,  aftpr  paymprit  nf  all  Hpbts,  arid  expenses  of  adminis-  ^^^^ 
tration.  But  the  plaintiff  may  deduct  therefrom  the  ex-  «^«-«*<'^^ 
penses  of  the  action,  the  reasonable  funeral  expenses  of  the  ^  ^  ^^^ 
decedent,  and  his  coTnmisRions  upon  the  residtta:  which  must  (^ouu«U  ^^ 
be  allowed  by  the  surrogate,  upon  notice,  given  in  such  a 
manner  and  to  such  persons,  as  the  surrogate  deems  proper.   V^  ^'^TT, 

"  §  1904.   The  damages  awarded  to  the  plaintiff  may  be  vi  -vJ-*-*^ 
such  a  sum  as  the  jurVr  upon  a  writ  of  inquiry,  or  upon  a  .       ^ouw 
trial,  or,  where  issues  of  fact  are  tried  without  a  jury,  the   '       "      • 
court  or  the  referee,  deems  to  be  a  fai^  ard  jll^t  c^mppnaa-   «^  *^^ 
tion  ^c^v  flip  pppi^m'ary  iniurie_s,  resulting,  from  the  decedent's 
death,  to  the  person  or  persons,  for  whose  benefit  the  action 
is  brought.     \Yhen  final  judgment  for  the  plaintiff  is  ren- 
dered, the  clerk  must  add  to  tlie  sum  so  awarded,  interest 


4:4  Introduction. 

thereupon  from  the  decedent's  death,  and  include  it  in  the 
judgment.  The  inquisition,  verdict,  report,  or  decision  may 
specify  the  day  from  which  interest  is  to  be  computed ;  if  it 
omits  so  to  do,  the  day  may  be  determined  by  the  clerk,  upon 
affidavits." 

"  §  1905.  The  term,  '  next  of  kin,'  as  used  in  the  fore- 
going sections,  has  the  meaning  specified  in  section  1870  of 
this  act."  .1      .      .  . 

:  Distribution  of  damages. — Section  1870  of  the  Code  of 
Civil  Procedure  provides :  "  The  term  '  next  of  kin,'  as  used 
in  this  title,  includes  all  those  entitled  ,  under  the  provisions 
of  law  relating  to  the  distribution  of  personal  property,  to 
share  in  the  unbequeathed  assets  of  a  decedent,  after  pay- 
ment of  debts  and  expenses,  other  than  a  sunaving  husband 
or  wife." 

The  provisions  relating  to  the  distribution  of  personal 
property  will  be  found  in  sections  2732-2734  of  the  Code 
of  Civil  Procedure. 

"  The  general  scheme  of  the  action  may  be  briefly  stated 
as  follows :  x\n  executor  or  administrator  can  sue  only  where 
decedent  leaves  husband,  wife  or  next  of  kin ;  when  the  action 
is  brought  it  is  for  the  exclusive  benefit  of  husband,  or  Avife, 
and  next  of  kin ;  the  proceeds  of  the  recovery  are  to  be  dis- 
tributed among  the  class  named,  as  if  they  were  unbequeathed 
assets  remaining  after  payment  of  debts  and  expenses; 
the  statute  providing  for  the  distribution  of  personal  prop- 
erty is  to  govern."  Matter  of  8nedeker  v.  Snedeher,  16-4 
K.^Y.  58,  62.  .      . 

No  double  liability.— In  Litthwood  v.  Mayor,  89  K  Y. 
24,  an  action  was  brought  to  recover  damages  for  the  death 
of  plaintiff's  intestate.  It  being  admitted  that  plaintiff's 
intestate,  during  his  life-time,  recovered  judgment  for  the 
injuries  sustained  by  him,  the  trial  court  dismissed  the  com- 
plaint. In  affirming  such  disposition  of  the  case,  the  Court 
of  Appeals,  at  p.  32,  says :  "  If  the  act  had  squarely  declared 


Inteoduction.  45 

that  an  action  might  be  maintained  by  the  legal  representa- 
tive, notwithstanding  a  recovery  by  or  an  accord  and  satis.- 
faction  with  the  deceased  in  his  life-time,  the  legislature 
might  Avell  have  paused  before  enacting  it,  to  consider  the 
policy  of  such  a  provision,  and,  as  suggested  in  the  opinion 
of  Johnson,  J.,  in  the  Dibble  Case  (25  Barb.  189),  how 
j^re judicially  it  would  operate  upon  the  interests  of  the  party 
injured,  by  depriving  him  of  the  power  of  settling  his  claim 
or  realizing  any  thing  from  it  in  his  life-time.  It  would 
naturally  if  not  inevitably  prevent  such  settlements  and  pro- 
crastinate litigation  until  it  could  be  determined  whether 
death  would  ensue  from  the  injury.  There  would  be  little  in- 
ducement to  settle  the  damages  without  suit,  because  what- 
ever might  be  paid  to  the  injured  party  would  neither  bar 
nor  diminish  the  claim  of  his  representative,  should  death 
ensue.  The  statute  should  not  be  strained  to  bring  about 
such  a  result,  nor  should  be  reached  unless  required  by  the 
plain  language  of  the  enactment." 

Injuries  to  person  and  to  property,  resulting  from  same 
tortious    act,   constitute   different   causes    of    action. — "  In 

England  it  has  been  held  by  the  Court  of  Appeal,  Lord 
Coleridge,  Chief  Justice,  dissenting,  that  damages  to  the 
person  and  to  property  though  occasioned  by  the  same  wrong- 
ful act  give  rise  to  different  causes  of  action  {Brunderi  v. 
Humphrey,  L.  E.  [1-i  Q.  B.]  141)  ;  while  in  Massachusetts, 
Minnesota  and  Missouri  the  contrary  doctrine  has  been  de- 
clared. (Doran  v.  Cohen,  147  l^fass.  342 ;  King  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  82  :N'.  W.  Rep.  1113 ;  Von  Fragstein  v. 
Windier,  2  Mo.  App.  598.)  The  argument  of  those  courts 
which  maintain  that  an  injury  to  person  and  property  creates 
but  a  single  cause  of  action  is  that  as  the  defendant's  wrong- 
ful act  was  single,  the  cause  of  action  must  be  single  and  that 
the  different  injuries  occasioned  by  it  are  merely  items  of 
damage  proceeding  from  the  same  wrong,  while  that  of  the 
English  court  is  tliat  the  negligent  act  of  the  defendant  in 
itself  constitutes  no  cause  of  action  and  becomes  an  action- 


46  Introduction. 

able  wrong  only  out  of  the  damage  which  it  causes.  '  Ono 
wrong  was  done  as  soon  as  the  plaintiff's  enjoyment  of  his 
property  was  substantially  interfered  with.  A  further  wrong 
arose  as  soon  as  the  driving  also  caused  injury  to  the  plain- 
tiff's person.'  (Brunden  v.  Humphrey,  supra.)  I  doubt 
whether  either  argument  is  conclusive.  If,  where  one  per- 
son was  driving  the  vehicle  of  another,  both  the  driver  and 
the  vehicle  were  injured,  there  can  be  no  doubt  that  two 
causes  of  action  would  arise,  one  in  favor  of  the  person 
injured  and  the  other  in  favor  of  the  owner  of  the  injured 
property.  On  the  other  hand,  if  both  the  horse  and  the 
vehicle,  being  the  property  of  the  same  person,  were  injured, 
there  would  be  but  a  single  cause  of  action  for  the  damage 
to  both.  If,  while  injury  to  the  horse  and  vehicle  of  a  person 
gives  rise  to  but  a  single  cause  of  action,  injury  to  the 
vehicle  and  its  owner  gives  rise  to  two  causes  of  action,  it 
must  be  because  there  is  an  essential  difference  between  an 
injury  to  the  person  and  an  injury  to  property  that  makes 
it  impracticable  or,  at  least,  very  inconvenient  in  the 
administration  of  justice  to  blend  the  two.  "We  think  there 
is  such  a  distinction.  Different  periods  of  limitation  apply. 
The  plaintiff's  action  for  personal  injuries  is  barred  by 
the  lapse  of  three  years;  that  for  injury  to  the  prop- 
erty not  till  the  lapse,  of  six  years.  The  plaintiff  cannot 
assign  his  right  of  action  for  the  injury  to  his  person, 
and  it  would  abate  and  be  lost  by  his  death  before 
a  recovery  of  a  verdict,  and  if  the  defendant  were  a  natural 
person,  also  by  his  death  before  that  time.  On  the  other 
hand,  the  right  of  action  for  injury  to  property  is  assign- 
able and  would  survive  the  death  of  either  party.  It  may 
be  seized  by  creditors  on  a  bill  in  equity  (Hudson  v.  Plets, 
11  Paige,  180),  and  would  pass  to  an  assig-nee  in  bankruptcy. 
Possibly  the  difficulties  arising  from  the  difference  in  die 
periods  of  limitation  and  the  difference  in  the  rule  of  sur- 
vival between  a  personal  injury  and  a  property  injury  might 
be  obviated  in  practice  by  holding  the  statute  a  bar  to  that 
portion  of  the  damages,  a  claim  for  which  would  have  been 


Introduction.  47 

outlawed  had  it  been  a  separate  cause  of  action,  and  Ly  per- 
mitting, in  case  of  death,  the  action  to  be  revived  so  far  as 
it  relates  to  property.  We  do  not  see,  however,  how  it  would 
be  practicable  to  deal  with  a  case  Avhere  the  right  of  action 
for  injury  to  the  property  had  passed  to  an  assignee  in  bank- 
ruptcy or  to  a  receiver  on  a  creditor's  bill  without  treating 
it  as  an  independent  cause  of  action.  Though,  as  we  have 
already  said,  section  434  of  the  Code  does  not  expressly  de- 
termine the  point  in  issue,  still  it  is  not  without  much  force 
in  the  argument  that  the  two  injuries  constitute  separate 
causes  of  action.  Under  the  old  Code  of  Procedure,  at  the 
time  of  its  original  enactment,  injuries  to  person  and  injuries 
to  property  were  separately  classified  as  causes  of  action, 
and  it  was  not  permitted  to  join  those  of  one  class  with  those 
of  another.  (Code  of  Procedure,  §  167.)  By  an  amend- 
ment in  1852,  injuries  to  persons  and  property  were  put  in 
the  same  class.  But  by  section  484  of  the  Code  of  Civil 
Procedure  they  are  again  placed  in  distinct  classes  and  can- 
not be  united.  If  the  plaintiff's  cause  of  action  is  single, 
into  what  class  does  it  fall  ?  Is  it  for  an  injury  to  the  per- 
son which  may  be  united  with  other  causes  of  action  for 
personal  injuries,  or  is  it  for  injury  to  property  which  may 
be  joined  with  claims  of  the  same  nature,  or  is  it  sui  generis, 
a  nondescript  which  must  stand  alone  ? 

"  While  some  of  the  difficulties  in  the  joinder  of  a  claim 
for  injury  to  the  person  and  one  for  injury  to  the  property 
in  one  cause  of  action  are  created  by  our  statutory  enact- 
ments, the  history  of  the  common  law  shows  that  the  distinc- 
tion between  torts  to  the  person  and  torts  to  property  has 
always  obtained.  Lord  Justice  Bowen  in  the  Brunden  case 
has  pointed  out  that  there  is  no  authority  in  the  books  for 
the  proposition  that  a  recovery  for  trespass  to  the  person  is 
a  bar  to  an  action  for  trespass  to  goods  or  vice  versa.  It  is 
true  that  at  common  law  the  necessity  of  bringing  two  suits 
could  at  the  election  of  the  plaintiff  be  obviated  in  some  cases, 
as,  for  instance,  by  declaring  for  trespass  on  the  plaintiff's 
close  and  alleging  in  aggravation  thereof  an  assault  upon 


48  iNTRODUCTIOISr. 

his!  person.  (See  "Watonnau  on  Trespass,  205,  40G.)  Still, 
in  such  a  ease  tliere  would  be  but  a  single  cause  of  action, 
to  wit,  the  trespass  upon  the  close,  and  if  the  defendant  justi- 
fied this  trespass  it  would  be  a  complete  defense  to  the  action, 
the  personal  assault  being  merely  a  matter  of  aggravation. 
(Carpenter  v.  Barber,  44  Vt.  441.) 

"  Therefore,  for  reason  of  the  great  difference  between  the 
rules  of  law  applicable  to  injuries  of  the  person  and  those 
relating  to  injuries  to  property  we  conclude  that  an  injury 
to  person  and  one  to  property,  though  residting  from  the 
same  tortious  act,  constitute  different  causes  of  action." 
Ee'ilhj  V.  Sicilian  Asphalt  Faring  Co.,  170  X.  Y.  40,  43-45. 

When  beneficiaries  are  non-resident  aliens. — In  the  case 
of  AIfso>i  V.  The  Bush  Co.,  Lid,  182  N.  Y.  303,  it  is  held 
that  an  action  to  recover  damages  for  negligently  causing 
death,  brought  under  section  1902  of  the  Code  of  Civil 
Procedure,  may  be  maintained,  notwithstanding  the  fact 
that  tlie  beneficiaries  are  all  non-resident  aliens. 

*'  Compensation  for  the  pecuniary  injuries." — "  I  do  not 
understand  from  the  pln-aseology  of  the  statute  that  an  ex- 
tremely nice  and  contracted  interpretation  should  be  put  upon 
the  term  '  pecuniary  iDJuries.'  A  liberal  scope  was  design- 
edly left  for  the  action  of  the  jury.  They  are  to  give  such 
damages  as  they  shall  deem  a  fair  and  just  compensation 
with  reference  to  the  pecuniary  injuries  resulting  from  such 
death.  They  are  not  tied  down  to  any  precise  rule. 
The  matter  is  to  be  submitted  to  their  sound  judgment  and 
sense  of  justice.  They  must  be  satisfied  that  pecuniary  in- 
juries resulted.  If  so  satisfied,  they  are  at  liberty  to  allow 
them  from  whatever  source  they  actually  proceeded  which 
could  produce  them.  If  they  are  satisfied  from  the  history 
of  the  family,  or  the  intrinsic  probabilities  of  the  case,  that 
they  were  sustained  by  the  loss  of  bodily  care,  or  intellectual 
culture,  or  moral  training,  .  .  .  ,  they  are  at  liberty  to 
allow  for  it.     The  statute  has  set  no  bounds  to  the  sources 


Introduction^.  49 

of  these  pecuniary  injuries.  If  the  rule  is  a  dangerous  one, 
and  liable  to  abuse,  the  legislature  and  not  tho  courts  must 
apply  the  corrective."  Tilley  v.  Hudson  River  Railroad  Co., 
29  K  Y.  252,  286. 

"  The  statute  implies  from  the  death  of  the  person  negli- 
gently killed  damages  sustained  by  the  next  of  kin.  {Quin 
V.  Moore,  15  IST.  Y.  432.)  Recognizing  the  generally  pro- 
spective and  indefinite  character  of  those  damages,  and  the 
impossibility  of  a  basis  for  accurate  estimate,  it  allows  a  jury- 
to  give  what  they  shall  deem  a  just  compensation,  . 
The  jury  is  neither  omnipotent,  nor  left  Avholly  to  conjecture. 
They  are  required  to  judge,  and  not  merely  to  guess,  and, 
therefore,  such  basis  for  their  judgment  as  the  facts  naturally 
capable  of  proof  can  give  should  always  be  present,  and  is 
rarely,  if  ever,  absent.  The  pecuniary  loss  in  any  such  cass 
may  be  composed  of  very  different  elements.  It  may  consist 
of  special  damages,  that  is  of  an  actual,  definite  loss,  capable 
of  proof,  and  of  measurement  with  approximate  accuracy; 
and  also  of  prospective  and  general  damages,  incapable  of 
precise  and  accurate  estimate  because  of  the  contingencies  of 
the  imknown  future.  An  example  of  such  special  and  actual 
damages  occurred  in  the  case  of  Murphy  v.  N.  Y.  Central, 
etc.,  R.  R.  Co.  (88  K  Y.  446),  where  we  allowed  as  one 
element  of  the  total  loss  the  funeral  expenses  of  the  deceased. 
.  .  .  But  the  value  of  a  human  life  is  a  different  matter. 
The  damages  to  the  next  of  kin  in  that  respect  are  necessarily 
indefinite,  prospective,  and  contingent.  They  cannot  be 
proved  with  even  an  approach  to  accuracy,  and  yet  they  are 
to  be  estimated  and  awarded,  for  the  statute  has  so  com- 
manded. But  even  in  such  case  there  is  and  there-  must  be 
some  basis  in  the  proof  for  the  estimate,  .  .  .  Human 
lives  are  not  all  of  the  same  value  to  the  survivors.  The  age 
and  sex,  the  general  health  and  intelligence  of  the  person 
killed,  the  situation  and  condition  of  the  survivors  and  their 
relation  to  the  deceased ;  these  elements  furnish  some  basia 
for  judgment.  That  it  is  slender  and  inadequate  is  true 
(Tilley  v.  Hudson  Riv.  R.  R.  Co.,  supra)  ;  but  it  is  all  that 
4 


50  Introduction. 

is  possible,  and  while  that  should  be  given  {Mclntyre  v. 
N.  Y.  Cent.  R.  R.  Co.,  37  K  Y.  289),  more  can  not  be 
required."  Houghkirk  v.  President,  etc.,  D.  &  H.  C.  Co., 
92  K  Y.  219,  224. 

Funeral  expenses. —  "  Under  a  similar  statute  in  England 
it  has  been  held  that  funeral  expenses  cannot  be  recovered. 
{Dalton  V.  Soutli-eastern  Ry.  Co.,  4  C.  B.  [N.  S.]  296; 
Boulter  v.  \Yel>ster,  13  Weekly  Rep.  289.)  But  in  this  coun- 
try, so  far  as  I  can  discover,  it  has  been  uniformly  held  that 
the  plaintiff  can  recover  such  expenses  if  the  law  imposes 
upon  the  relatives  for  Avhose  benefit  the  suit  is  brought  the 
obligation  to  bear  them.  {Penn.  R.  R.  Co.  v.  Bantom,  54 
Penn.  St.  495 ;  Oiven  v.  Brockschmidt,  54  Mo.  285 ;  Roeder 
V.  Ormshy,  22  How.  Pr.  270.)"  Murphy  v.  N.  Y.  Cent.,  etc., 
R.  R.  Co.,  88  N.  Y.  445,  446.  See  §  1903  Code  of  Civil 
Procedure. 

Recovery  not  limited  to  minority. —  "  The  jury  were  not 
bound,  in  estimating  the  compensation  to  be  made  for  the 
death  of  the  child,  to  confine  their  considerations  to  her 
minority.  It  is  true  that  the  plaintiff,  as  father,  could  com- 
mand her  services  only  during  her  minority.  But  in  certain 
contingencies  she  might,  after  her  majority,  owe  him  the 
duty  of  support,  which  could,  by  legal  proceedings,  be  en- 
forced; and  after  that  event  she  might,  in  many  ways,  be 
of  great  pecuniary  benefit  to  him.  In  estimating  the 
pecuniary  value  of  this  child  to  her  next  of  kin,  the  jury 
could  take  into  consideration  all  the  probable,  or  even  pos- 
sible, benefits  which  might  result  to  them  from  her  life,  modi- 
fied, as  in  their  estimation  they  should  be,  by  all  the  chances 
of  failure  and  misfortune.  There  is  no  rule  but  their  own 
good  sense  for  their  guidance,  and  they  were  not  in  this  case 
bound  to  assume  that  no  pecuniary  benefits  would  come  to 
the  next  of  kin  from  this  child  after  her  majority."  Birkett 
V.  Knickerbocker  Ice  Co.,  110  K  Y.  504,  508. 

This  being  a  purely  statutory  right  of  action,  conferred 
upon  the  legal  representative  of  the  decedent  in  favor  of  cer- 


Intkoduction.  51 

tain  specified  beneficiaries,  and  not  an  action  to  recover  for 
loss  of  services,  to  limit  recovery  to  minority  would  seem  to 
be  unreasonable  and  improper. 

The  cause  of  action  abates  with  the  death  of  the  wrong- 
doer.— ■  ■•  The  cause  of  action  here  provided  for  does  not  pur- 
port to  be  in  any  respect  a  derivative  one,  but  is  an  original 
right  conferred  by  the  statute  upon  representatives  for  the 
benefit  of  beneficiaries,  but  founded  upon  a  wrong  already 
actionable  by  existing  law  in  favor  of  the  party  injured,  for 
his  damages. 

" .  .  .  The  statute,  although  creating  a  new  cause  of 
action,  and  passed  for  the  express  purpose  of  changing  the 
rule  of  the  common  law  in  respect  to  the  survivability  of 
actions,  and  conferring  a  right  upon  representatives  which 
they  did  not  before  possess,  does  not  undertake,  either  ex- 
pressly or  impliedly,  to  impair  the  equally  stringent  rule 
which  precluded  the  maintenance  of  such  actions  against  the 
representatives  of  the  offending  party. 

"  The  plain  implication  from  its  language  would,  there- 
fore, seem  to  be  at  war  with  the  idea  that  the  legislature 
intended  to  create  a  cause  of  action  enforceable  against,  as 
well  as  by  representatives.  The  cause  of  action  thereby  given 
is  not  to  the  estate  of  the  deceased  person,  but  to  his  or  her 
representatives  as  trustees,  not  for  purposes  of  general  ad- 
ministration, but  for  the  exclusive  use  of  specified  bene- 
ficiaries. 

"  The  wrong  defined  indicates  no  injury  to  the  estate  of 

the  person  killed,  and  cannot  either  logically  or  legally  be 

said  to  affect  any  property  rights  of  such  person,  unless  it 

can  be  maintained  that  a  person  has  a  property  right  in  his 

own  existence.     .     .     .     Whatever  claim  a  wife  or  children 

have    at    law   upon    the   husband    and    father    for    support 

perishes  with  the  life  of  such  person,  and  thereafter  their 

claims  upon  his  estate  are  governed  by  statutory  rules. 
*         *         *         *^*         *         **         * 

"  The  complaint  in  the  present  action  describes  a  cause  of 
action  arising  out  of  the  death  alone,  and  suggests  no  injury 


52  IjVfTKODUCTIOiS'. 

to  the  estate  or  property  of  tlie  deceased.  Such  a  cause  of 
action  is  abated  by  the  death  of  the  wTong-doer."  Heyerich 
V.  Keddie,  99  N.  Y.  258,  2 07-270. 

Survival  of  action  after  death  of  sole  administrator  and 
next  of  kin. —  iu  the  case  of  Meekin  v.  Brooklyn  Heights 
B.  R.  Co.,  1 64  ]Sr.  Y.  145,  the  court  held  that  an  action  under 
section  1902  of  the  Code  of  Civil  Procedure  survives  the 
death  of  the  sole  administrator  and  next  of  kin,  because  the 
right  of  action  is  for  wrong  done  to  the  property,  rights  or 
interests  of  the  beneficiaries,  saying,  at  p.  151,  ^'  In  Hegerich 
V.  Keddie  (99  X.  Y,  258)  it  Avas  held  that  the  cause  of  action 
for  damages  from  negligence  resulting  in  death  abates  upon 
the  death  of  the  wrong-doer,  and  that  an  action  cannot  be 
maintained  against  his  representatives.  This  is  a  necessary 
result  from  the  fact  that  the  Code  modifies  the  Eevised  Stat- 
utes and  the  common  law  only  as  to  the  personal  representa- 
tives of  the  person  injured,  and  not  as  to  those  of  the  person 
who  inflicted  the  injury."  And  again,  at  p.  153,  "  Thus  it 
appears,  both  from  the  statute  and  the  authorities,  that  the 
damages  awarded  for  the  negligent  act  are  such  as  result  to 
the  property  rights  of  the  person  or  persons  for  whose  benefit 
the  cause  of  action  was  created.  Nothing  is  allowed  for  a 
personal  injury  to  the  personal  representatives  or  to  the  bene- 
ficiaries, but  the  allowance  is  simply  for  injuries  to  the  estate 
of  the  latter  caused  by  the  wrongful  act.  The  statute,  as  it 
has  been  held,  is  not  simply  remedial,  but  creates  a  new 
cause  of  action  in  favor  of  the  personal  representatives  of 
the  deceased,  which  is  wholly  distinct  from  and  not  a  revivor 
of  the  cause  of  action,  which,  if  he  had  survived,  he  would 
have  had  for  his  bodily  injury." 

Action  for  personal  injury  does  not  abate  after  verdict. — 

"  After  verdict,  report  or  decision  in  an  action  to  recover 
damages  for  a  personal  injury,  the  action  does  not  abate  by 
the  death  of  a  party,  but  the  subsequent  proceedings  are  the 
same  as  in  a  case  where  the  cause  of  action  survives.     And 


Ij^^TriODUCTION.  53 

in.  case  said  verdict,  report  or  decision  is  reversed  upon  ques- 
tions of  law  only,  said  action  does  not  abate  by  the  death  of 
the  party  against  whom  the  same  was  rendered."  §  764, 
Code  Civ.  Pro. 

Principal  and  agent. — "  The  principal  is  liable  in  a  civil 
suit,  to  third  persons,  for  the  frauds,  deceits,  concealments, 
misrepresentations,  torts,  negligences  and  other  malfeasances 
and  misfeasances  of  his  agent  in  the  course  of  his  employ- 
ment, although  the  principal  did  not  authorize,  justify,  or 
participate  in,  or  indeed  know  of  such  misconduct,  or  even 
if  he  forbade  the  acts,  or  disapproved  of  them.  (Story  on 
Agency,  §  452,  p.  563.) 

"  This  rule  of  liability  is  not  based  upon  any  presumed 
authority  in  the  agent  to  do  the  acts,  but  upon  the  ground  of 
public  policy,  and  that  it  is  more  reasonable,  where  one  of 
two  innocent  persons  must  suffer  from  the  wrongful  act  of  a 
third  person,  that  the  principal,  who  has  placed  the  agent 
in  the  position  of  trust  and  confidence  should  suffer,  than  a 
stranger.  {Hern  v.  Nichols,  1  Salk.  E.  289.)  ...  All 
that  is  necessary  to  render  the  principal  liable  for  the  mal- 
feasance or  torts  of  the  agent  is  that  the  tort  must  be  com- 
mitted in  the  course  of  the  agency  (Story  on  Agency,  §  456)  ; 
not  that  the  agency  authorized  it,  or  as  it  is  expressed  by 
Paley,  that  the  employment  afforded  the  means  of  com- 
mitting the  injury.  (Dunlop  and  Paley  on  Agency,  306.)" 
Lee  V.  The  Village  of  Sandy  Hill  40  I^.  Y.  442,  448. 

See  also  Higgins  v.  The  Watervliet  Turnpilce  Co.,  46  ]^.  Y. 
23,  27,  and  Fifth  Avenue  Banh  v.  Forty-second  St.  Pi.  Co., 
137  K  Y.  231,  241. 

Master  and  servant. — By  the  rule  of  natural  capacity, 
every  one  is  liable  for  his  wrongful  acts ;  that  at  the  time  he 
was  acting  for  another,  does  not  excuse  his  individual 
responsibility;  but  the  person  for  whom  he  was  acting  may 
also  be  liable. 


54  Intkodl'ctiojn'. 

The  following  are  common-law  rules  and  principles  appli- 
cable to  tlie  relation  of  master  and  servant,  and  their  dutie^i 
and  liabilities.  Consideration  of  statutes  in  favor  of  the 
employee  or  imposing  additional  duties  on  the  employer,  is 
not  herein  accorded. 

Master  and  servant:  the  relation. — "  The  relation  of  mas- 
ter and  servant  exists  whenever  the  employer  retains  the  right 
to  direct  the  manner  in  which  the  business  shall  be  done,  as 
well  as  the  result  to  be  accomplished,  or,  in  other  words,  '  not 
only  Avhat  shall  be  done,  but  how  it  shall  be  done.'  "  Singer 
Manufacturing  Co.  v.  Balin,  132  U.  S.  518,  523. 

Master's  liability  to  third  persons. —  The  general  rule  is, 
that  a  master  is  liable  to  third  persons  injured  through  the 
wrongful  acts  of  his  servant  while  acting  within  the  scope 
of  his  emploATiient.  For  torts  committed  outside  the  line  of 
his  employment,  the  servant  alone  is  responsible. 

"  It  is  sufficient  to  make  the  master  responsible  civiliter,  if 
the  wrongful  act  of  the  servant  was  committed  in  the  busi- 
ness of  the  master,  and  within  the  scope  of  his  employment, 
and  this,  although  the  servant,  in  doing  it,  departed  from 
the  instructions  of  his  master."  Higgins  v.  The  Watervliet 
Turnpike  Co.,  46  N.  Y.  23,  27. 

Master  as  a  common  carrier. —  A  master  is  as  liable  for  the 
wilful,  as  for  the  negligent  act  of  his  servant,  provided  the 
wrongful  act  was  committed  in  the  business  of  the  master 
and  within  the  scope  of  the  employment.  In  the  case  of  a 
common  carrier  a  seemingly  greater  responsibility  to  a  pas- 
senger attaches,  but  this  is,  after  all,  only  because  the  ser- 
vant or  agent  engaged  in  executing  the  contract  of  carriage 
cannot,  during  the  transportation,  act  without  the  scope  of 
his  employment.  "A  common  carrier  is  bound,  so  far  as 
practicable,  to  protect  his  passengers,  while  being  conveyed, 
from  violence  committed  by  strangers  and  co-passengers,  and 
he  undertakes  absolutely  to  protect  them  against  the  miscon- 


Introduction.  55 

duct  of  its  own  servants  engaged  in  executing  the  contract." 
Stewart  v.  Brooklyn  &  Crosstoivn  E.  E.  Co.,  90  E".  Y.  588, 
691.  Such  responsibility,  however,  is  assumed  only  towards 
passengers,  not  strangers,  and  applies  only  to  such  servants 
as  are  engaged  in  the  execution  of  the  contract  of  carriage. 

Provocation  by  passenger. — "  It  is  undoubtedly  true  that 
a  common  carrier  of  passengers  undertakes  to  protect  passen- 
gers from  the  negligence  or  wilful  misconduct  of  its  servants 
•while  engaged  in  performing  a  duty  which  the  carrier  owed 
to  the  passengers.  But  it  has  not  as  yet  been  held  that,  wdiere 
a  passenger  by  his  owm  misbehavior,  while  being  transported, 
has  provoked  a  personal  encounter  between  himself  and  one 
of  the  employees  of  the  carrier,  that  the  carrier  is  liable  for 
the  results.  It  may  be  true  that  the  use  of  the  abusive  lan- 
guage to  the  driver  did  not  justify  the  assault,  as  far  as  the 
driver  is  concerned,  in  the  eyes  of  the  criminal  law;  but 
there  is  no  reason  for  holding  that  where  a  passenger,  by  his 
own  improper  and  insulting  behavior,  while  a  passenger  upon 
the  road  of  the  railway  company,  brings  upon  himself  an 
assault,  the  carrier  should  be  responsible.  Carriers  are  to 
be  held  to  the  strictest  responsibility.  They  must  treat  their 
passengers  respectfully  and  protect  them  so  far  as  they 
reasonably  can  from  injury  or  insult  on  the  part  of  the 
employees.  But  there  is  also  a  responsibility  on  the  part  of 
the  passenger.  He  is  bound  to  conduct  himself  in  an  orderly 
and  decent  manner,  and  if  he  forgets  his  obligations,  and,  by 
his  indecent  behavior  and  by  the  use  of  language  which  is 
morally  certain  to  end  in  a  personal  encounter,  he  succeeds 
in  his  efforts  to  bring  about  such  a  result,  certainly  the  car- 
rier cannot  be  bound  to  protect  the  passenger  under  such  cir- 
cumstances from  the  natural  and  probable  results  of  his  0"wn 
act."  Scott  V.  Central  Park,  etc.,  E.  E.  Co.,  53  Hun,  414, 
415. 

In  Rosters  v.  Brooklyn,  B.  &  ^Y.  E.  E.  E.  Co.,  10  Misc.  18 
(affirmed  without  opinion  in  151  N.  Y.  630),  the  plaintiff 
sued  to  recover  damages  for  an  assault  committed  upon  him, 


56  I]vrTEODucTioisr. 

while  a  passenger  on  defendant's  car  by  the  conductor.  The 
eoitductor  testified  that  the  plaintiff  used  abusive  language, 
and  struck  at  him  with  an  iron  wrench,  and  that  he  then 
struck  plaintiff  with  a  club.  \"erdict  for  plaintiff.  The  Gen- 
eral Terrn  of  the  City  Court  of  Brooklyn  said  (p.  19)  :  "  The 
only  question  for  our  consideration  is  whether  the  court  erred 
in  refusing  to  charge,  at  defendant's  request,  that  '  if  the 
plaintiff  commenced  the  altercation,  and,  in  the  course  of  it, 
addressed  indecent  and  insulting  language  to  the  conductor, 
and  language  such  as  was  calculated  or  likely  to  produce  an 
assault,  the  verdict  must  be  for  defendant.'  Assuming  that 
this  is  a  sound  statement  of  law,  under  the  authority  of  the 
prevailing  opinion  in  Scott  v.  C.  P.,  etc.,  R.  Co.,  53  Hun, 
414,  it  seems  to  us  that  the  court  charged  so  much  thereof  as 
was  applicable  to  the  facts  in  this  case.  .  .  .  The  court 
charged  that  if  the  plaintiff  assaulted  or  threatened  to  assault 
the  conductor,  the  latter  was  justified  in  assaulting  plaintiff." 
Verdict  not  disturbed. 


Relation  must  exist  at  time  of  commission  of  wrongful 
act. — "  The  doctrine  of  respondeat  superior  applies  only 
when  the  relation  of  master  and  sei-vant  is  shown  to  exist 
between  the  wrong-doer  and  the  person  sought  to  be  charged 
for  the  result  of  the  wrong,  at  the  time  and  in  respect  to  tlie 
very  transaction  out  of  which  the  injury  arose.  The  fact 
that  the  party  to  whose  wrongful  or  negligent  act  an  injury 
may  be  traced  was,  at  the  time,  in  the  general  employment 
and  pay  of  another  person,  does  not  necessarily  make  the 
latter  the  master  and  responsible  for  his  acts.  The  master 
is  the  person  in  whose  business  he  is  engaged  at  the  time,  and 
who  has  the  right  to  control  and  direct  his  conduct.  Servants 
who  are  employed  and  paid  by  one  person  may,  nevertheless, 
be  ad  hoc  the  servants  of  another  in  a  particular  transaction, 
and  that,  too,  when  their  general  employer  is  interested  in 
the  work."  Higgins  v.  The  Western  Union  Telegraph  Co., 
156  K  Y.  75,  78. 


Introduction.  5'7 

Reasons  for  the  master's  liability. — ''This  rule  is  obviously 
founded  on  the  great  principle  of  social  duty,  that  every  man, 
in  the  management  of  his  own  affairs,  whether  by  himself  or 
by  his  agents  or  servants,  shall  so  conduct  them  as  not  to  in- 
jure another;  and  if  he  does  not,  and  another  thereby  sus- 
tains damage,  he  shall  answ^er  for  it."  Farwell  v.  Boston  & 
Worcester  E.  R.  Co.,  4  Met.  49,  55. 

"  In  Blahe  v.  Ferris  (1  Scdden,  48),  it  Avas  held  that  the 
liability  of  any  one,  other  than  the  party  actually  guilty  of 
any  wrongful  act,  proceeds  on  the  maxim,  '  Qui  facit  per 
alium  facit  per  se/  The  party  employing  has  the  selection 
of  the  party  employed,  and  it  is  reasonable  that  he  who  has 
made  choice  of  an  unskilful  or  careless  person  to  execute  his 
orders,  should  be  responsible  for  an  injury  resulting  from  the 
want  of  skill  or  want  of  care  of  the  person  employed ;  but 
neither  the  principle  of  the  rule,  nor  the  rule  itself,  can  apply 
to  a  case  w^here  the  party  sought  to  be  charged  does  not  stand 
in  the  relation  of  master  or  principal  to  the  party  by  whose 
negligent  act  the  injury  has  been  occasioned."  Pach  v.  The 
Mayor,  etc.,  of  New  Yorh,  8  K  Y.  222,  225. 

"  This  rule  is  founded  upon  public  policy  and  convenience. 
Every  person  is  bound  to  use  due  care  in  the  conduct  of  his 
business.  If  the  business  is  committed  to  an  agent  or  servant, 
the  obligation  is  not  changed,"  Higgins  v.  The  Watervliet 
Turnpike  Co.,  46  K  Y.  23,  27. 

"  The  master  is  liable  only  for  the  authorized  acts  of  the 
servant,  and  the  root  of  his  liability  for  the  servant's  acts  is 
his  consent,  express  or  implied,  thereto.  .  .  .  It  is  not 
the  test  of  the  master's  liability  for  the  wrongful  act  of  the 
servant,  from  which  injury  to  a  third  person  has  resulted, 
that  he  expressly  authorized  the  particular  act  and  conduct 
which  occasioned  it.     .     .     . 

"  It  is,  in  general,  sufficient  to  make  the  master  responsible 
that  he  gave  to  the  servant  an  authority,  or  made  it  his  duty 
to  act  in  respect  to  the  business  in  w^hich  he  w^as  engaged  when 
the  wrong  was  committed,  and  that  the  act  complained  of  was 
done  in  the  course  of  his  employment.     The  master  in  that 


58  INTRODUCTION. 

case  will  be  deemed  to  have  consented  to  and  authorized  the 
act  of  the  servant,  and  he  will  not  be  excused  from  liability, 
although  the  servant  abused  his  authority,  or  was  reckless  in 
the  performance  of  his  duty,  or  inflicted  an  unnecessary  in- 
jury in  executing  his  master's  orders."  Bounds  v.  Del.,  Lack. 
&  ^Ycst.  B.  B.  Co.,  64  N.  Y.  129,  133. 

'^  Llackstone  (T.,  417)  is  short  in  his  statement,  and  has 
no  other  reason  to  give  than  the  fiction  of  an  '  implied  com- 
mand.' It  is  currently  said,  Bespondeai  superior;  which  is  a 
dogmatic  statement,  not  an  explanation.  It  is  also  said,  Qui 
facit  per  alium  facit  per  se;  but  this  is  in  terms  applicable 
only  to  authorized  acts,  not  to  acts  that,  although  done  by 
the  agent  or  servant  '  in  the  course  of  the  service,'  are  spe- 
cifically unauthorized  or  even  forbidden.  Again,  it  is  said 
that  a  master  ought  to  be  careful  in  choosing  fit  servants; 
but  if  this  were  the  reason,  a  master  could  discharge  himself 
by  showing  that  the  servant  for  Avhose  wrong  he  is  sued  was 
chosen  by  him  -v^ath  due  care,  and  was  in  fact  generally  well 
conducted  and  competent:  which  is  certainly  not  the  law." 
Pollock  on  Torts  (7th  ed.),  76. 

Independent  contractor. — "  The  rule  that  where  the  re- 
lation of  master  and  servant  or  principal  and  agent  does  not 
exist,  but  an  injury  results  from  negligence  in  the  perform- 
ance of  work  by  a  contractor,  the  party  with  whom  he  con- 
tracts is  not  responsible  for  his  negligence  or  that  of  his  ser- 
vants, is  well  established  by  the  authorities  in  this  State. 
(Blake  V.  Ferris,  5  Is^.  Y.  48 ;  Pack  v.  MaTjor,  etc.,  8  N.  Y. 
222;  Kelhj  v.  Mayor,  etc.,  11  K  Y.  432;  McCafferty  v. 
8.  D.  &  P.  M.  B.  B.  Co.,  61  N.  Y.  178 ;  King  v.  N.  Y.  C. 
&  II.  B.  B.  B.  Co.,  66  N.  Y.  181 ;  Town  of  Pierrepont  v. 
Loveless,  72  N.  Y  211 ;  Ferguson  v.  Huhhell,  97  N.  Y.  507 ; 
Herrington  v.  Village  of  Lansinghurgh,  110  N.  Y.  145; 
Boemer  v.  Striker,  142  N.  Y.  134.) 

"  There  are  certain  exceptional  cases  where  a  person  em- 
ploying a   contractor  is  liable,   which,   briefly   stated,    are: 


Ij^TKODUCTIOiSr.  59- 

"Where  the  employer  personally  interferes  with  the  work,  and 
the  acts  performed  by  him  occasion  the  injury ;  where  the 
thing  contracted  to  be  done  is  unlawful ;  where  the  acts  per- 
formed create  a  public  nuisance ;  and  where  an  employer  is 
bound  by  a  statute  to  do  a  thing  efficiently  and  an  injury 
results  from  its  inefficiency."  Berg  v.  Parsons,  156  X.  Y. 
109,  112  and  115. 

Test  of  independent  contractor. — "  Independence  of  con- 
trol in  employing  workmen  and  in  selecting  the  means  of 
doing  tiie  work  is  the  test  usually  applied  by  courts  to  deter- 
mine whether  the  contractor  is  independent  or  not."  Upping- 
ton  V.  City  of  Neiv  Yorh,  165  N".  Y.  222,  233. 

Master's  duty  to  servant. —  ''The  general  principles  .  .  . 
have  been  so  frequently  discussed  in  recent  cases  that  any- 
thing more  than  a  brief  summary  would  be  unprofitable. 
Thus  it  has  been  held  that  a  master  owes  the  duty  to  his 
servant  of  furnishing  adequate  and  suitable  tools  and  imple- 
ments for  his  use,  a  safe  and  proper  place  in  which  to  prose- 
cute his  work,  and,  when  they  are  needed,  the  employment 
of  skillful  and  competent  workmen  to  direct  his  labor  and 
assist  in  the  performance  of  his  duties.  {Bartonsliill  Coal 
Co.  V.  Beid,  3  Macq.  275;  Laning  v.  N.  Y.  C.  B.  B.  Co., 
49  X.  Y.  522;  Bnjdon  v.  Stewart,  2  Macq.  34;  Booth  v. 
B.  c(-  A.  B.  B.  Co.,  73  X.  Y.  40.)  That  '  no  duty  belonging 
to  the  master  to  perform,  for  the  safety  and  protection  of  his 
servants  can  be  delegated  to  any  servant  of  any  grade  so  as 
to  exonerate  the  master  from  responsibility  to  a  servant  who 
has  been  injured  by  its  non-performance.'  {Mann  v.  Presi- 
dent, etc.,  91  K  Y.  500;  Booth  v.  B.  &  A.  B.  B.  Co.,  supra.) 
And  that,  when  the  general  management  and  control  of  an 
industrial  enterprise  or  establishment  is  delegated  to  a  super- 
intendent, with  power  to  hire  and  discharge  servants,  to  direct 
their  labors  and  obtain  and  employ  suitable  means  and  appli- 
ances for  the  conduct  of  the  business,  such  superintendent 
stands  in  the  place  of  the  master,  and  his  neglect  to  adopt 


©0  Introduction. 

all  reasonable  means  and  precautions  to  provide  for  the  safety 
of  the  employees  constitutes  an  omission  of  duty  on  the  part 
of  the  master,  rendering  him  liable  for  any  injury  occurring 
to  the  servant  therefrom.  (Corcoran  v.  Ilolbrooh,  59  N.  Y. 
517.)"    Pantzar  v.  Tilly  Foster  Mm.  Co.,  99  K  Y.  3G8,  372. 

Servant's  responsibility  to  the  master. —  "  Every  servant 
is  bound  to  take  due  care  of  his  master's  property  entrusted  to 
him.  If  guilty  of  gross  negligence,  whereby  it  is  injured, 
he  is  liable  to  an  action.  So,  too,  if  guilty  of  fraud  or  mis- 
feasance, whereby  damage  has  accrued  to  his  master. 

"  A  servant  is  liable  to  an  action  at  the  suit  of  his  master, 
when  a  third  person  has  brought  an  action,  and  recovered 
damages  against  the  master,  for  injuries  sustained  in  conse- 
quence of  the  servant's  negligence  or  misconduct ;  and  in 
such  an  action  against  the  servant,  the  verdict  against  the 
master,  in  the  action  brought  against  him,  is  evidence  as  to 
the  quantum,  of  damages,  though  not,  according  to  some  of 
the  English  authorities,  as  to  the  fact  of  the  injury."  Grand 
Trunh  Railway  Co.  v.  Latham,  63  Me.  177. 

Servant's  liability  to  third  persons. — "  In  a  case  of  strict 
negligence  by  a  servant,  while  employed  in  the  service  of  his 
master,  I  see  no  reason  why  an  action  will  not  lie  against 
both  jointly.  They  are  both  guilty  of  the  same  negligence, 
at  the  same  time  and  under  the  same  circumstances;  the 
servant  in  fact  and  the  master  constructively,  by  the  servant, 
his  agent."     Wright  v.  Wilcox,  19  Wend.  313. 

"  The  law  on  this  subject  as  to  principals  and  agents  is 
founded  upon  the  same  analogies  as  exist  in  the  case  of  mas- 
ters and  servants.  The  master  is  always  liable  to  third  per- 
sons for  the  misfeasances  and  negligences  and  omissions  of 
duty  of  his  servant,  in  all  cases  within  the  scope  of  his  em- 
ployment. So  the  principal  in  like  manner,  is  liable  to  third 
persons  for  the  like  misfeasances,  negligences  and  omissions 
of  duty  of  his  agent,  leaving  him  to  his  remedy  over  against 
the  agent  in  all  cases  w^here  the  tort  is  of  such  a  nature  that 


Irv'TRODUCTIOIs".  61 

he  is  entitled  to  compensation.  The  agent  is  personally  liable 
to  third  persons,  for  his  own  misfeasances  and  positive 
wrongs,  but  he  is  not  in  general  liable  to  third  persons  for 
his  0"wn  non-feasances  or  omissions  of  duty,  in  the  course  of 
his  employment.  His  liability  in  these  latter  cases,  is  solely 
to  his  principal,  there  being  no  privity  between  him  and  such 
third  persons ;  and  the  privity  exists  only  between  him  and 
his  principal."  Harriman  v.  Stowe,  57  Mo.  93.  See  also 
editorial  in  IST.  Y.  Law  Journal  of  March  16,  1904. 

Modification  of  the  doctrine  of  respondeat  superior. — 
A  modification  of  the  doctrine  of  respondeat  superior  ex- 
empts the  master  from  liability  to  servants  for  injuries  sus- 
tained through  the  fault  of  fellow-servants. 

"  The  general  rule  that  the  employer  is  not  liable  to  one 
servant  or  laborer  for  an  injury  resulting  from  the  careless- 
ness or  negligence  of  another  servant  or  co-laborer  . 
was  first  promulgated  in  England  in  1837  (3  M.  &  W.  1), 
in  South  Carolina  in  1841  (1  McCuUom  385),  and  in  Massa- 
chusetts in  1842  (4  Met.  49),  and  has  been  adopted  in  this 
and  most  of  the  other  States  in  the  Union.  There  has  been 
a  diversity  of  reasons  given  for  its  adoption,  w^hich  have  led 
to  some  confusion  in  its  application."  Flilx  v.  Boston  & 
Albany  B.  R.  Co.,  53  X.  Y.  549,  551. 

Reasons  for  the  rule. — "  The  reasons  for  the  rule  are  well 
stated  by  Pratt^  J.,  in  the  first  case  in  which  it  was  applied 
in  this  State  (6  Barb.  231),  and  were  in  substance  that  the 
rule  respondeat  superior  does  not  itself  spring  directly  from, 
principles  of  natural  justice  and  equity,  but  has  been  estab- 
lished upon  principles  of  expediency  and  public  policy  for 
the  protection  of  the  community;  and  that,  in  view  of  the 
unjust  consequences  which  may  ensue  from  its  application 
for  injuries  by  co-servants,  the  same  principles  of  public 
policy  demand  its  limitation,  and  that  while  the  general  rule 
was  demanded  for  the  protection  of  the  community,  the  ex- 
ception is  demanded  for  the  protection  of  the  employer,  espe- 


62  Introduction. 

ciallj  in  view  of  the  manner  in  which  the  principal  business 
of  the  country  is  now  transacted.  This  view  evinces  the  flexi- 
bility of  the  principles  of  the  common  law,  which  are  capable 
of  adaptation  to  new  or  changed  circumstances,  and  enables 
courts  to  adjust  the  application  of  the  principle  not  in  obedi- 
ence to  a  supposed  arbitrary  rule,  but  with  such  limitations 
and  qualifications  as  best  accord  with  reason  and  justice.  In 
applying  the  rule  we  should  be  cautious  not  to  violate  the 
very  principles  upon  which  it  is  founded.  While  shielding 
the  employer  from  unjust  and  burdensome  liabilities,  we 
should  not  withhold  all  redress  from  the  employed  for  re- 
missness and  carelessness  in  respect  to  duties  which  fairly 
devolve  upon  the  former  as  the  principal,  and  over  which  the 
latter  have  no  control."  Flil-e  v.  Boston  &  Albany  II.  R. 
Co.,  53  N.  Y.  549,  552. 

"  The  general  rule,  resulting  from  considerations  as  well 
of  justice  as  of  policy,  is,  that  he  who  engages  in  the  employ- 
ment of  another  for  the  performance  of  specified  duties  and 
services,  for  compensation,  takes  upon  himself  the  natural 
and  ordinary  risks  and  perils  incident  to  the  performance  of 
such  services,  and,  in  legal  presumption,  the  compensation  is 
adjusted  accordingly.  And  we  are  not  aware  of  any  prin- 
ciple which  should  except  the  perils  arising  from  the  care- 
lessness and  negligence  of  those  who  are  in  the  same  employ- 
ment. These  are  perils  which  the  servant  is  as  likely  to 
know,  and  against  which  he  can  as  effectually  guard,  as  the 
master.  They  are  perils  incident  to  the  service,  and  which 
can  be  as  distinctly  foreseen  and  provided  for  in  the  rate  of 
compensation  as  any  others."  Farwell  v.  Boston  &  Worcester 
R.  R.  Co.,  4  Met.  49,  57. 

•'  If  the  exemption  of  masters  from  liability  to  servants 
for  the  negligence  of  fellow-servants  is  founded  upon  any 
princi])le  Avhatever,  it  must  be  upon  an  assumption  that,  in 
a  majority  of  cases  so  large  as  to  constitute  a  rule  for  all 
others,  both  employer  and  employee  tacitly  imderstand,  when 
the  employment  begins,  that  the  employee  is  not  to  expect 
indemnity  from  the  employer  against  the  negligence  of  other 


li^JTKODUCTION.  63 

persons  in  the  same  common  employment.  If  it  is  true  that 
such  is  the  universal  understanding  between  the  parties, 
though  unexpressed,  and  that  such  was  the  case  before  the 
question  had  ever  been  passed  upon  by  the  courts,  there  is  a 
good  foundation  for  the  rule,  in  all  cases  in  which  an  express 
contract  to  the  same  effect  would  be  binding.  For,  upon  a 
familiar  principle  of  the  law  of  contracts,  where  both  parties 
to  the  contract  of  hiring  have,  in  fact,  each  understood  the 
contract  in  that  sense,  or  where  the  employee  entered  into 
the  contract  of  service,  knowing  or  believing  that  the  em- 
ployer understood  this  condition  to  be  implied,  the  condition 
is  implied,  just  as  effectually  as  if  it  had  been  put  down  in 
writing.  And  if  such  a  mutual  understanding  has  always 
existed,  in  the  vast  majority  of  cases,  and  a  contrary  under- 
standing has  not  been  known  to  exist  in  any  appreciable 
number  of  cases,  such  a  state  of  facts  creates  a  settled  usage, 
the  terms  of  which  are  implied  in  every  contract  from  which 
they  are  not  expressly  excluded,  even  though  one  of  the 
parties  may  not  have  known  of  the  usage  or  intended  to  assent 
to  it,  so  long  as  the  other  party  was  not  aware  of  that  cir- 
cumstance. These  are  well-known  princij)les  in  the  law  of 
contracts;  and  they  are  properly  applicable  to  the  law  of 
master  and  servant."  Shearman  &  Eediield  on  I^egligence 
(5th  ed.),  §  179. 

Who  are  fellow-servants. —  "A  master  is  not  liable  to 
those  in  his  employ  for  injuries  resulting  from  the  negli- 
gence, carelessness  or  misconduct  of  a  fellow-servant  engaged 
in  the  same  general  business.  ISTor  is  the  liability  of  the 
master  enlarged  when  the  servant  who  has  sustained  an 
injury  is  of  a  grade  of  the  service  inferior  to  that  of  the 
servant  or  agent  whose  negligence,  carelessness  or  miscon- 
duct has  caused  the  injury,  if  the  services  of  each,  in  his 
particular  labor,  are  directed  to  the  same  general  end.  And 
though  the  inferior  in  grade  is  subject  to  the  control  and 
directions  of  the  superior  whose  act  or  omission  has  caused 
the  injury,  the  rule  is  the  same.     Nor  is  it  necessary,  to 


Sii  I.NTKODUCTIOX, 

exempt  the  master  from  liability,  that  the  sufferer  and  the 
one  who  causes  the  injury  should  be  at  the  time  engaged  in 
the  same  particular  work.  If  they  are  in  the  employment 
of  the  same  master,  engaged  in  the  same  common  work  and 
performing  duties  and  services  for  the  same  general  purposes, 
the  master  is  not  liable,"  Laning  v.  N.  Y.  C.  R.  11.  Co.,  49 
K  Y.  521,  528. 

Rank  or  grade  immaterial. —  "  The  master  is  not  respon- 
sible for  the  negligent  performance  of  some  detail  of  the 
work  intrusted  to  the  servant,  whatever  may  have  been  the 
grade  of  the  servant  who  executes  such  detail.  If  it  is  the 
work  of  the  servant,  and  he  volunteers  to  perform  it,  and 
the  master  is  not  at  fault  in  furnishing  proper  materials, 
there  is  no  breach  of  duty  on  the  part  of  the  latter."  Kimmer 
V.  ^Veher,  151  K  Y.  417,  422. 

"  To  hold  the  principal  liable  whenever  there  are  grada- 
tions of  rank  between  the  person  receiving  and  the  person 
causing  the  injury,  or  whenever  they  are  employed  in  differ- 
ent departments  of  the  same  general  service,  would  result 
in  frittering  away  the  whole  doctrine  of  fellow-service. 
Cases  arising  between  persons  engaged  together  in  the  same 
identical  service,  as,  for  instance,  between  brakemcn  of  the 
same  train  or  two  seamen  of  equal  rank  in  the  same  ship, 
are  comparatively  rare.  In  a  large  majority  of  cases  there 
is  some  distinction  either  in  respect  to  grade  of  service,  or 
in  the  nature  of  their  employments.  Courts,  however,  have 
been  reluctant  to  recognize  these  distinctions  unless  the  supe- 
riority of  the  pe-rson  causing  the  injury  was  such  as  to  put 
him  rather  in  the  category  of  principal  than  of  agent,  as, 
for  example,  the  superintendent  of  a  factory  or  railway,  and 
the  employments  were  so  far  different  that,  although  paid  by 
the  same  master,  the  two  servants  were  brought  no  farther 
in  contact  with  each  other  than  as  if  they  had  been  employed 
by  different  principals."  Northern  Pacific  Railroad  v. 
Jlambly,  154  U.  S.  349,  3 GO,  and  cited  with  approval  in 
New  England  Railroad  Co.  v.  Conroy,  175  U.  S.  323,  337. 


I:xTRODUCTiO']sr.  65 

Must  be  under  control  of  one  master. —  Common  employ- 
ment and  ultimate  purpose  are  insufficient  to  make  men 
fellow-servants.  In  Kilroy  y.D.&  H.  C.  Co.,  121  N.  Y.  22, 
it  was  contended  that  the  person  injured  and  the  person 
causing  the  injury  were  fellow-servants  because  they  were 
engaged  in  one  coimnon  employment,  but  the  court  said  (p. 
30)  that  "they  could  not  be  fellow-servants  unless  they  were 
under  the  control  of  one  master." 

Vice-principals  not  fellow-servants. —  "  At  an  early  day, 
American  judges  divided  sharply  upon  the  question  of  the 
liability  of  a  master  to  his  servants,  for  the  negligence  of  a 
servant  of  superior  grade  and  in  control  of  other  servants. 
The  question  was  passed  upon,  almost  at  the  same  time,  in 
the  East  and  the  West:  the  Massachusetts  court  holding 
strongly  in  favor  of  masters,  and  the  Ohio  court  strongly 
against  them.  A  long  conflict  of  opinions  followed ;  and 
,  in  1887,  there  was  no  general  settled  rule.  Al- 
though entire  unanimity  has  not  yet  been  reached  on  some 
material  points,  several  fundamental  principles  are  fully 
agreed  upon.  It  is  now  universally  held,  in  iimerican  courts, 
that  a  master  always  may  have,  and  sometimes  must  have, 
a  servant,  who  acts  as  his  representative  or  alter  ego  towards 
other  servants ;  and  that  for  the  negligence  of  such  repre- 
sentative, while  acting  as  such,  the  master  is  responsible  to 
the  other  servants,  precisely  as  if  it  were  his  own.  By  gen- 
eral consent  such  representative,  while  acting  as  such,  is 
called  a  '  vice-principal.'  And  a  vice-principal  is  not  a 
'  fellow-servant.'  "  Shearman  &  Eedfield  on  Negligence  (5th 
ed.),  §  226. 

"  It  frequently  becomes  very  difficult  t^  determine 
whether  the  particular  act  in  any  case  is  that  of  the  master 
in  his  character  as  such,  or  is  only  that  of  a  mere  fellow- 
servant.  It  is  not  a  question  as  to  the  rank  of  the  individual 
who  gives  the  order  or  performs  the  act.  The  question  is 
one  as  to  the  character  of  the  order  or  act,  whether  it  is  one 
which  is  given  or  performed  as  an  order  or  act  of  the  master 
5 


66  Introduction. 

in  his  character  as  such,  or  only  as  an  order  or  act  delegated 
by  the  master  to  another  and  performed  by  such  other  as  an 
employee.  The  rule  as  to  the  liability  of  the  master  for  the 
act  of  a  servant  is  well  known.  Church,  Ch.  J.,  said  in  the 
Flike  case  that  the  master  must  be  held  liable  for  negligence 
in  respect  to  such  acts  or  duties  as  he  is  required  to  perform 
as  master,  and  Avithout  regard  to  the  rank  or  title  of  the  agent 
whom  he  has  intrusted  with  its  performance.  (Flike  v. 
Boston,  etc.,  Co.,  53  N.  Y.  549.)  This  language  was  re- 
peated in  Crispin  v.  Bahhitt  (81  N.  Y.  516),  where  the 
liability  of  the  master  for  the  negligence  of  his  servant,  by 
which  another  servant  has  suffered  injury,  was  said  not  to 
depend  upon  the  doctrine  of  respondeat  superior,  but  upon 
the  omission  of  some  duty  of  the  master  which  he  has  con- 
fided to  such  inferior  employee.  If  the  act  omitted  were  of 
the  kind-  which  the  master  owed  to  the  employee  the  duty 
of  performing,  he  would  be  responsible  to  the  employee  for 
the  manner  of  its  performance.  It  is  not  a  question  of  rank 
among  the  different  employees.  The  rule  thus  laid  down 
has  been  since  frequently  approved  in  this  court."  Hankins 
v.  N.  Y.,  L.  E.  &  ^V.  R.  R.  Co.,  142  N.  Y.  416,  420. 

Negligence  of  master  and  fellow-servant  concurring. — 

Where  a  servant  has  been  injured,  partly  through  the  wrong- 
ful act  of  a  fellow-servant  and  partly  in  consequence  of  the 
omission  of  a  duty  owing  by  the  master,  the  master  may  be 
held  responsible  for  the  entire  damage  suffered,  because  the 
law  will  not  attempt  to  apportion  it. 

"  It  has  recently  been  several  times  held  in  this  court  that 
co-operation  of  the  negligence  of  the  master  and  a  co-servant 
in  the  production  of  an  injury  to  an  employee,  does  not 
excuse  the  master  from  liability  therefor,  .  .  .  That  a 
fellow-servant  may,  by  care  and  caution,  operate  a  defective 
and  dangerous  machine  so  as  not  to  produce  an  injury  to 
others,  does  not  exempt  the  master  from  his  liability  for  an 
omission  to  perform  the  duty  which  the  law  imposes  upon 
him  of  exercising  reasonable  care  and  prudence  in  furnish- 


Introduction.  67 

ing  safe  and  suitable  appliances  for  the  use  of  his  servants. 
The  rule  which  excuses  the  master  under  such  circumstances 
presupposes  that  he  has  performed  the  obligations  which  the 
law  imposes  upon  him,  and  that  the  injury  occurs  solely 
through  the  negligence  of  the  co-employee."  Stringham  v. 
Stewart,  100  N.  Y.  516,  526. 


r    3  -a 


^^"^   \5;  THE  EMPLOYEES'  LIABILITY  ACT. 

'**T.y>-  (Laws  of  New  York,  1902,  Chapter  600.)  "^^^-"^-i^ 

ri''*''''*^        An  Act  to  extend  and  regulate  the  liability  of  employers 
to  make  compensation  for  personal  injuries  suffered  by 
*'*^''*\'y^     employees. 

^\  (Became  a  law,  April   15,   1902,  with   the  approval  of  the  Governor. 

f\|*^  Passed,  three-fifths  being  present.) 


^J^  The  people  of  the  State   of  New   York,  represented  in  )  **" 

*^  ^^^'^     Senate  and  Assembly,  do  enact  as  follows:  -!»>.•_«*-  "^ 


JoO-^ 


''*'-^j****V        Section  1.  Where,  after  this  act  takes  effect,  personal  in- 
^^— ^,>r    jury  is  caused  to  an  employee  who  is  himself  in  the  exercise 
/-5   —  of  due  care  and  dilis-ence  at  the  time :  3       -u^. 

1.  Ways,  works,  or  machinery. —  By  reason  of  any  defect 
in  the  condition  of  the  ways,  works  or  machinery  connected 
with  or  used  in  the  business  of  the  employer  which  arose 
from  or  had  not  been  discovered  or  remedied  owing  to  the  3 
negligence  of  the  employer  or  of  any  person  in  the  service 
of  the  employer  and  entrusted  by  him  with  the  duty  of  seeing 
that  the  ways,  works  or  machinery  w^ere  in  proper  condition ;    '"'"*'*J*- 

2.  Negligence;   compensation  against  employer  in  case  \,si*^ 
injury  results  in  death. —  By  reason  of  the  negligence  of  any    '-«jro->Ji 
person  in  the  service  of  the  employer  entrusted  with  and 
exercising  superintendence  whose  sole  or  principal  duty  is 
that  of  superintendence,  or  in  the  absence  of  such  superin- 


«sc 


68  Introouction. 

tendent,  of  any  person  acting  as  superintendent  with  the 
authority  or  consent  of  such  employer;  the  employee,  or  in 
case  the  injury  results  in  death,  the  executor  or  administrator 
of  a  deceased  employee  who  has  left  him  surviving  a  husband, 
wife  or  next  of  kin,  shall  have  the  same  right  of  compensa- 
tion and  remedies  against  the  employer  as  if  the  employee 
had  not  been  an  employee  of  nor  in  the  service  of  the  em- 
ployer nor  engaged  in  his  v/ork.  The  provisions  of  law  relat- 
ing to  actions  for  causing  death  by  negligence,  so  far  as  the 
same  are  consistent  with  this  act,  shall  apply  to  an  action 
brought  by  an  executor  or  administrator  of  a  deceased  em- 
ployee suing  under  the  provisions  of  this  act. 

§  2.  Action,  how  maintained;  notice  requirements  as  to; 
in  case  of  death  without  having  given  notice;  notice,  how 
served. — ■  ]S^o  actictn  for  recovery  of  compensation  for  injury 
or  death  under  this  act  shall  be  maintained  unless  notice  of 
the  time,  place  and  cause  of  the  injury  is  given  to  the  em- 
ployer within  one  hundred  and  twenty  days  and  the  action 
is  commenced  within  one  year  after  the  occurrence  of  the 
accident  causing  the  injury  or  death.     The  notice  required 
by  this  section  shall  be  in  writing  and  signed  by  the  person 
injured  or  by  some  one  in  his  behalf,  but  if  from  physical 
or  mental  incapacity  it  is  impossible  for  the  person  injured 
to  give  notice  within  the  time  provided  in  said  section,  he 
may  give  the  same  within  ten  days  after  such  incapacity  is 
removed.     In  case  of  his  death  v/ithout  having  given  such 
notice,  his  executor  or  administrator  may  give  such  notice 
within  sixty  days  after  his  appointment,  but  no  notice  under 
the  provisions  of  this  section  shall  be  deemed  to  be  invalid 
or  insufficient  solely  by  reason  of  any  inaccuracy  in  stating 
the  time,  place  or  cause  of  the  injury  if  it  be  shown  that 
there  was  no  intention  to  mislead  and  that  the  party  entitled 
to  notice  was  not  in  fact  misled  thereby.     The  notice  required 
by  this  section,  shall  be  served  on  the  employer  or  if  tliere 
is  more  than  one  employer,  upon  one  of  such  employers,  and 
may  be  served  by  delivering  the  same  to  or  at  the  residence 
or  place  of  business  of  the  person  on  whom  it  is  to  be  served. 


Introduction.  69 

The  notice  may  be  served  by  post  by  letter  addressed  to  the 
person  on  whom  it  is  to  be  served,  at  his  last  kno%vn  place  of 
residence  or  place  of  business  and  if  served  by  post  shall  be 
deemed  to  have  been  served  at  the  time  when  the  letter  con- 
taining the  same  would  be  delivered  in  the  ordinary  conrse  of 
the  post.  ^Yhen  the  employer  is  a  corporation,  notice  shall  be 
served  by  delivering  the  same  or  by  sending  it  by  post 
addressed  to  the  office  or  principal  place  of  business  of  such 
corporation. 

^  3.  Employee  assents  to  necessary  risks  of  occupation; 
question,  etc.,  to  be  one  of  fact,  etc. —  An  employee  by  enter- 
ing upon  or  continuing  in  the  service  of  the  employer  shall 
be  presumed  to  have  assented  to  the  necessary  risks  of  the 
occupation  or  employment  and  no  others.  The  necessary 
risks  of  the  occupation  or  employment  shall,  in  all  cases 
arising  after  this  act  takes  effect  be  considered  as  including 
those  risks,  and  those  only,  inherent  in  the  nature  of  the  busi- 
ness which  remain  after  the  employer  has  exercised  due  care 
in  providing  for  the  safety  of  his  employees,  and  has  com- 
plied with  the  laws  affecting  or  regulating  such  business  or 
occupation  for  the  greater  safety  of  such  employees.  In  an 
action  maintained  for  the  recovery  of  damages  for  personal 
injuries  to  an  employee  received  after  this  act  takes  effect, 
owing  to  any  cause  for  which  the  employer  would  otherwise 
be  liable,  the  fact  that  the  employee  continued  in  the  ser%dce 
of  the  employer  in  the  same  place  and  course  of  employment 
after  the  discovery  by  such  employee,  or  after  he  had  been 
informed  of,  the  danger  of  personal  injury  therefrom,  shall 
not,  as  a  matter  of  law,  be  considered  as  an  assent  by  such 
employee  to  the  existence  or  continuance  of  such  risks  of  per- 
sonal injury  therefrom,  or  as  negligence  contributing  to  such 
injury.  The  question  whether  the  employee  understood  and 
assumed  the  risk  of  such  injury,  or  was  guilty  of  contributory 
negligence,  by  his  continuance  in  the  same  place  and  course 
of  employment  with  knowledge  of  the  risk  of  injury  shall 
be  one  of  fact,  subject  to  the  usual  powers  of  the  court  in 
a  proper  case  to  set  aside  a  verdict  rendered  contrary  to  the 


70  Ijsttkoduction. 

evidence.  An  employee,  or  his  legal  representative,  shall  not 
be  entitled  under  this  act  to  any  right  of  compensation  or 
remedy  against  the  employer  in  any  case  where  such  employee 
knew  of  the  defect  or  negligence  which  caused  the  injury 
and  failed,  within  a  reasonable  time,  to  give,  or  cause  to  be 
given,  information  thereof  to  the  employer,  or  to  some  person 
superior  to  himself  in  the  service  of  the  employer  who  had 
entrusted  to  him  some  general  superintendence,  unless  it 
shall  appear  on  the  trial  that  such  defect  or  negligence  was 
known  to  such  employer,  or  superior  person,  prior  to  such 
injuries  to  the  employee. 

§  4.  Insurance  fund. —  An  employer  who  shall  have  con- 
tributed to  an  insurance  fund  created  and  maintained  for  the 
mutual  purpose  of  indemnifying  an  employee  for  personal 
injuries,  for  which  compensation  may  be  recovered  under 
this  act,  or  to  any  relief  society  or  benefit  fund  created  under 
the  laws  of  this  state,  may  prove  in  mitigation  of  damages 
recoverable  by  an  employee  under  this  act  such  proportion 
of  the  pecuniary  benefit  which  has  been  received  by  such 
employee  from  such  fund  or  society  on  account  of  such  con- 
tribution of  employer,  as  the  contribution  of  such  employer 
to  such  fund  or  society  bears  to  the  whole  contribution 
thereto. 

§  5.  Existing  right  of  action,  etc.,  continued. — Every  ex- 
isting right  of  action  for  negligence  or  to  recover  damage3 
for  injuries  resulting  in  death  is  continued  and  nothing  in 
this  act  contained  shall  be  construed  as  limiting  any  such, 
right  of  action,  nor  shall  the  failure  to  give  the  notice  pro- 
vided for  in  section  two  of  this  act  be  a  bar  to  the  main- 
tenance of  a  suit  upon  any  such  existing  right  of  action. 

§  6.  When  act  takes  effect. — This  act  shall  take  effect 
July  first,  nineteen  hundred  and  two. 


Assault  and  Battery.  73 


ASSAULT  AND  BATTERY 

Security  of  person. — "  Security  for  the  person  is  among 
the  first  conditions  of  civilized  life.  The  law  therefore  pro- 
tects us,  not  only  against  actual  hurt  and  violence,  but 
against  every  kind  of  bodily  interference  and  restraint  not 
justified  or  excused  by  allowed  cause,  and  against  the  present 
apprehension  of  any  of  these  things."  Pollock  on  Torts  (Ttli 
ed.),  209. 

"  One  of  the  most  imjiortant  objects  to  be  attained  by  the 
enactment  of  laws  and  the  institutions  of  civilized  society  is, 
each  of  us  shall  feel  secure  against  unlawful  assaults.  With- 
out such  security  society  loses  most  of  its  value.  Peace  and 
order  and  domestic  happiness,  inexpressibly  more  precious 
than  mere  forms  of  govermnent,  cannot  be  enjoyed  without 
the  sense  of  perfect  security.  "We  have  a  right  to  live  in 
society  without  being  put  in  fear  of  personal  harm.  But  it 
must  be  a  reasonable  fear  of  which  we  complain."  Beach  v. 
HancocJc,  27  K  H.  223,  229. 

Assault  defined. —  An  assault  "is  an  attempt  or  offer  to 
beat  another,  without  touching  him."  Blackstone  Com.,  Ill,, 
120. 

"  An  action  which  puts  another  in  instant  fear  of  unlaw- 
ful force,  though  no  force  be  actually  applied,  is  the  wrong 
called  assault."    Pollock  on  Torts  (7th  ed.),  209. 

An  assault  is  "  an  attempt  with  force  or  violence  to  do  a 
corporal  injury  to  another ;  and  may  consist  of  any  act  tend- 
ing to  such  corporal  injury,  accompanied  with  such  circum- 
stances as  denote  at  the  time  an  intention,  coupled  with  the 
present  ability,  of  using  actual  violence  against  the  person." 
Hays  V.  The  People,  1  Hill,  351,  352. 

"  An  assault  (without  contact)  is  an  attempt,  real  or  ap- 
parent, to  do  hurt  to  another's  person,  within  reach.  It  is 
an  attempt  tx3  do  bodily  harm,  stopping  short  of  actual  execu- 
tion."    Bigelow  on  Torts  (7th  ed.),  184. 


74  Assault  and  Battery. 

Intent. — "  To  constitute  an  indictable  assault  or  battery, 
there  must  always  be  an  intent,  expressed  or  implied,  to  do 
injury  to  another;  but  one  may  be  liable  in  a  civil  action 
for  assault  or  battery,  where  there  was  an  entire  absence  of 
intent  to  do  any  injury,  the  ground  of  liability  being  that 
the  assault  was  committed  in  the  pursuance  of  an  unlawful 
act  or  was  the  result  of  negligence."  II.  Am.  &  Eng.  Enc. 
of  Law  (2d  ed.),  953. 

While  it  is  true  that  intention  to  do  harm  is  immaterial 
in  the  civil  wrong  of  assault,  intention  to  put  in  fear  of  pres- 
ent bodily  harm  would  seem  to  be  necessary  to  produce  the 
effect  of  an  assault. 

"  There  is  no  battery,  according  to  the  modern  view,  unless 
the  blow  itself  was  intentional  or  reckless,  or  unless  the  de- 
fendant was  otherwise  conducting  himself  as  a  trespasser  at 
the  time."     Bigelow  on  Torts  (7th  ed.),  190. 

Essential  elements. — 

1.  The  offer  or  attempt  to  do  harm. 

2.  The  indicated  intent  to  put  in  fear  of  present  bodily 
harm. 

3.  The  real  or  apparent  present  ability  to  do  harm. 

Threats.  — "  It  is  not  every  threat,  when  there  is  no  actual 
personal  violence,  that  constitutes  an  assault;  there  must,  in 
all  cases,  be  the  means  of  carrying  the  threat  into  effect.  ' 
Stephens  v.  Myers,  4  Car.  &  P.  349. 

"  Verbal  threats  of  personal  violence  are  not,  as  such,  a 
ground  of  civil  action  at  all.  If  a  man  is  thereby  put  in 
reasonable  bodily  fear  he  has  his  remedy,  but  not  a  civil  one, 
namely  by  security  of  the  peace."  Pollock  on  Torts  (7th  ed.), 
215. 

Assault  included  in  battery. —  "  Battery  includes  assault, 
and  although  assault  strictly  means  an  inchoate  battery,  the 
word  is  in  modern  usage  constantly  made  to  include  battery. 
No  reason  appears  for  maintaining  the  distinction  of  terms 
in  our  modern  practice."     Pollock  on  Torts  (7th  ed.),  210. 


Assault  and  Battery.  75 

The  modern  use  is  apparent  in  the  English  Criminal  Code 
•of  1879.  "  An  assault  is  the  act  of  intentionally  applying 
force  to  the  person  of  another  directly  or  indirectly,  or  at- 
tempting or  threatening  by  any  act  or  gesture  to  apply  such 
force  to  the  person  of  another,  if  the  person  making  the 
threat  causes  the  other  to  believe  upon  reasonable  grounds 
that  he  has  present  ability  to  effect  his  purpose."  Eng.  Crim. 
Code  (Indict.  Offences)' Bill,  s.  203. 

Battery  defined. —  ''  The  least  touching  of  another's  per- 
son wilfully,  or  in  anger,  is  a  battery;  for  the  law  cannot 
draw  the  line  between  different  degrees  of  violence,  and  there- 
fore totally  prohibits  the  first  and  lowest  stage  of  it;  every 
man's  person  being  sacred,  and  no  other  having  a  right  to 
meddle  with  it,  in  any  the  slightest  manner."  Blackstone 
Com.,  III.,  120. 

Contact. —  ''It  is  not  necessary  that  the  defendant  should 
come  in  contact  with  the  plaintiff's  body.     It  is  sufficient  if 
the  blow  or  touch  come  upon  the  plaintiff's  clothing. 
********* 

"  Indeed,  it  is  not  necessary  that  the  plaintiff's  body  or 
•clothing  be  touched.  To  knock  a  thing  out  of  the  plaintiff's 
hands,  such  as  a  staff  or  cane,  would  clearly  be  a  battery; 
and  the  same  would  be  true  of  the  striking  a  thing  upon 
which  he  is  resting  for  support,  at  least  if  this  cause  to  the 
plaintiff  a  fall  or  concussion."  Bigelow  on  Torts  (7th  ed.), 
188. 

In  People  v.  Moore,  50  Hun,  356,  a  peddler,  seated  in  his 
sleigh,  was  driving  his  team,  on  his  way  to  deliver  milk  to 
his  customers.  The  defendant  barred  his  passage  at  a  certain 
point,  seized  the  reins,  took  the  horses  by  their  heads,  turned 
them  around,  and  told  the  peddler  to  drive  on.  The  defend- 
ant was  convicted  of  assault  [assault  and  battery]  in  the 
third  degree,  and  on  appeal  to  the  General  Term  of  the 
Supreme  Court,  the  court  (at  p.  358)  said:  "It  is  plain, 
,     .     .     ,  that  the  force  which  ho  [the  defendant]  applied 


7G  Assault  and  Batteey. 

to  the  horses  and  sleigh  just  as  effectually  touched  the  person 
of  Snyder  [the  peddler],  as  if  he  had  taien  him  hy  his  ears 
or  shoulders  and  turned  him  right  about  face.  The  horses 
and  sleigh  were  the  instruments  with  which  he  directed  and 
augmented  his  personal  and  physical  force  against,  and  upon 
the  body  of  Snyder.  Snyder  did  receive  bodily  harm.  One 
receives  bodily  harm,  in  a  legal  sense,  when  another  touches 
his  person  against  his  will  with  physical  force,  intentionally 
hostile  and  aggressive,  or  projects  such  force  against  his 
person." 

Use  of  force  or  violence  when  not  unlawful. — "  To  use  or 
attempt,  or  offer  to  use,  force  or  violence  upon  or  towards 
the  person  of  another,  is  not  unlawful  in  the  following  cases : 

''1.  ^^^len  necessarily  committed  by  a  public  officer  in 
the  performance  of  a  legal  duty;  or  by  any  other  person 
assisting  him  or  acting  by  his  direction; 

"  2.  "When  necessarily  committed  by  any  person  in  arrest- 
ing one  who  has  committed  a  felony,  and  delivering  him  to 
a  public  officer  competent  to  receive  him  in  custody; 

"  3.  When  committed  either  by  the  party  about  to  be  in- 
jured, or  by  another  person  in  his  aid  or  defense,  in  pre- 
venting or  attempting  to  prevent  an  offense  against  his 
person,  or  a  trespass  or  other  unlawful  interference  with  real 
or  personal  property  in  his  lawful  possession,  if  the  force  or 
violence  used  is  not  more  than  sufficient  to  prevent  such 
offense ; 

"  4.  ^Yhen  committed  by  a  parent  or  the  authorized  agent 
of  any  parent,  or  by  any  guardian,  master  or  teacher,  in  the 
exercise  of  a  lawful  authority  to  restrain  or  correct  his  child, 
ward,  apprentice  or  scholar,  and  the  force  or  violence  used 
is  reasonable  in  manner  and  moderate  in  degree; 

^'  5.  When  committed  by  a  carrier  of  passengers,  or  the 
authorized  agents  or  servants  of  such  carrier,  or  by  any  per- 
son assisting  them,  at  their  request,  in  expelling  from  a  car- 
riage, railway  car,  vessel  or  other  vehicle,  a  passenger  who 
refuses  to  obey  a  lawful  and  reasonable  regulation  prescribed 


Assault  and  Battery.  77 

for  the  conduct  of  passengers,  if  such  vehicle  has  first  been 
stopped  and  the  force  or  violence  used  is  not  more  than 
sufficient  to  expel  the  offending  passenger,  with  a  reasonable 
regard  to  his  personal  safety ; 

''  0.  When  committed  by  any  person  in  preventing  an 
idiot,  lunatic,  insane  person,  or  other  person  of  unsound 
mind,  including  persons  temporarily  or  partially  deprived  of 
reason,  from  committing  an  act  dangerous  to  himself  or  to 
another,  or  in  enforcing  such  restraint  as  is  necessary  for 
the  protection  of  his  person  or  for  his  restoration  to  health, 
during  such  period  only  as  shall  be  necessary  to  obtain  legal 
authority  for  the  restraint  or  custody  of  his  person.'"  !N".  Y. 
Penal  Code,  §  223. 

Consent. — "  The  weight  of  authority  is  that,  where  a 
combat  involves  a  breach  of  the  peace,  the  mutual  consent 
of  the  parties  thereto  is  to  be  regarded  as  unlawful,  and  as 
not  depriving  the  injured  party,  or,  for  that  matter,  each 
injured  party,  from  recovering  damages  for  injuries  received 
from  the  unlawful  acts  of  the  other."  Lund  v.  Tyler,  115 
la.  236,  237. 

"  It  is  implied,  in  an  assault  or  battery,  that  it  is  com- 
mitted against  the  assent  of  the  person  assaulted ;  but  there 
are  some  things  a  man  can  never  assent  to,  and  therefore  his 
license  in  such  cases  can  constitute  no  excuse.  He  can  never 
consent,  for  instance,  to  the  taking  of  his  own  life.  His  life 
is  not  his  to  take  or  give  away ;  it  would  be  criminal  in  him 
to  take  it,  and  equally  criminal  in  anyone  else  who  should 
deprive  him  of  it  by  his  consent.  The  person  who,  in  a  duel, 
kills  another,  is  not  suffered  to  plead  the  previous  arrange- 
ments and  the  voluntary  exposure  to  death  by  agreement,  as 
any  excuse  whatever.  The  life  of  an  individual  is  guarded 
in  the  interest  of  the  State,  and  not  in  the  interest  of  the 
individual  alone;  and  not  his  life  only  is  protected,  but  his 
person  as  well.     Consent  cannot  justify  an  assault. 

"  But  suppose  in  the  duel  one  is  not  killed,  but  only 
"wounded;  may  he  have  an  action  against  his  adversary  for 


78  Assault  and  Battery. 

this  injury  ?  If  there  is  any  reason  why  he  may  not,  it  must 
be  because  he  has  consented  to  what  has  been  done.  Volenti 
non  jit  injuria,  liut  if  he  had  no  right  or  power  to  consent, 
and  the  consent  expressed  in  words  was  wholly  illegal  and 
void,  the  question  then  is,  how  a  consent  which  the  law  for- 
bids can  be  accepted  in  law  as  a  legal  protection. 

"  Consent  is  generally  a  full  and  perfect  shield  when  that 
is  complained  of  as  a  civil  injury  which  was  consented  to. 
A  man  cannot  complain  of  a  nuisance,  the  erection  of  which 
he  concurred  in  or  countenanced.  He  is  not  injured  by  a 
negligence  which  is  partly  chargeable  to  his  own  fault.  A 
man  may  not  even  complain  of  the  adultery  of  his  wife, 
which  he  connived  at  or  assented  to.  If  he  concurs  in  the- 
dishonor  of  his  bed,  the  law  will  not  give  him  redress,  be- 
cause he  is  not  wronged.  These  cases  are  plain  enough, 
because  they  are  cases  in  which  the  questions  arise  between 
the  parties  alone. 

'*  But  in  case  of  a  breach  of  the  peace  it  is  different.  The 
State  is  wronged  by  this,  and  forbids  it  on  public  grounds. 
If  men  fight,  the  State  will  punish  them.  If  one  is  injured, 
the  law  will  not  listen  to  an  excuse  based  on  a  breach  of  tha 
law.  There  are  three  parties  here,  one  being  the  State, 
which,  for  its  o^vn  good,  does  not  suffer  the  others  to  deal  on 
a  basis  of  contract  with  the  public  peace.  The  rule  of  law 
is  therefore  clear  and  unquestionable,  that  consent  to  an 
assault  is  no  justification.  The  exception  to  this  general 
rule  embraces  only  those  cases  in  which  that  to  which  assent 
is  given  is  matter  of  indifference  to  public  order;  such  as 
slight  batteries  in  play  or  lawful  games,  such  unimportant 
injuries,  as  even  when  they  constitute  technical  wrongs,  may 
well  be  overlooked  and  excused  by  the  party  injured,  if  not 
done  of  deliberate  malice.  But  an  injury,  even  in  sport, 
would  be  an  assault,  if  it  went  beyond  what  was  admissible 
in  sports  of  the  sort,  and  was  intentional."  Cooley  on  Torts 
(2d  ed.),  187. 

The  New  York  Law  Journal,  in  its  issue  of  January  22, 
1902,  criticises  the  above  as  follows:    "With  the  gi-eatest 


Assault  and  Battery.  79 

deference  for  the  distinguished  jurist,  it  may  be  sugi^ested 
in  rejoinder  tliat  the  fact  that  a  person's  conseat  to  his  death 
or  injury  cannot  be  permitted  to  characterize  the  criminal 
character  of  an  act  would  not  necessarily  preclude  attaching 
an  entirely  different  significance  to  such  consent  in  a  civil 
action  for  the  recovery  of  damages.  The  above  argument 
consists  of  transplanting  a  highly  proper  rule  of  the  criminal 
law  into  the  civil  law  where  its  effect  is  not  conducive  to  good 
results.  The  offense  of  adultery  would  seem  to  be  an  un- 
fortunate illustration  of  a  case  '  in  which  the  questions  arise 
between  the  parties  alone.'  In  many  of  the  States  adultery 
constitutes  a  crime,  and  there  is  scarcely  any  offense  outside 
of  the  serious  crimes  of  violence  with  which  public  policy 
more  generally  concerns  itself.  This  extract  from  Cooley  ou 
Torts  indeed  starts  out  with  an  artificial  and  fictitious  prem- 
ise which,  in  our  judgment,  vitiates  its  logic.  The  learned 
author  remarks :  '  There  are  some  things  a  man  can  never 
assent  to,  and,  therefore,  his  license  in  such  cases  can  consti- 
tute no  excuse.  He  can  never  consent,  for  instance,  to  the 
taking  of  his  owm  life,'  etc.  With  all  due  respect  it  is  sug- 
gested that  a  man  who  requests  another  to  kill  him  and  per- 
mits him  to  do  it,  does  assent  to  the  taking  of  his  life.  A 
man  who  participates  in  a  duel  or  engages  in  a  fight  does 
impliedly  consent  to  whatever  injuries  he  may  receive  in  the 
natural  course  of  the  combat.  The  theoretical  distinction 
that  should  be  made  is,  that  as  far  as  criminal  complexion 
is  concerned,  the  assent  or  license  is  ignored  in  pursuance  of 
public  policy,  while  in  civil  cases  the  consent  is  material. 

"  If  a  man  voluntarily  enters  into  a  fight,  or  intentionally 
provokes  one,  there  is  strong  practical  ground  for  invoking, 
not  only  the  principle  volenti  non  fit  injuria,  but  the  some- 
what cognate  one,  that  no  one  may  profit  by  his  own  wrong. 
It  might  have  a  disastrous  effect  upon  the  public  peace,  as  well 
as  frequently  result  in  abstract  injustice,  if  it  were  generally 
realized  that  a  person  could  be  as  insulting  and  pugnacious 
as  he  pleased  and  still  recover  a  round  sum  for  damages,  if 
he  were  actually  overborne  in  the  fight  or  suffered  himself 


80  Assault  and  Eatteky. 

to  be  injured.  It  is  gravely  questionable  wlietlicr  the  prO' 
vision  allowing  the  conduct  of  the  plaintiff  to  be  shown  in 
mitigation  of  damages  is  a  sufficient  corrective  or  safeguard." 

Defense  of  person. — "  Self-defense  is  a  primary  law  of 
nature,  and  it  is  held  an  excuse  for  breaches  of  the  peace  and 
even  for  homicide  itself.  But  care  must  be  taken  that  the 
resistance  docs  not  exceed  the  bounds  of  mere  defense, 
.  .  .  ,  so  as  to  become  vindictive ;  for  then,  tlu;  defender 
would  himself  become  the  aggressor.  The  force  used  must 
not  exceed  the  necessity  of  the  case."  Scnhner  v.  Beach, 
4  Denio,  448,  450. 

Must  person  assaulted  retreat  if  possible? — In  People  v. 
Danhherg,  91  App.  Div.  07,  71,  ^'  The  learned  trial  court, 
after  calling  the  attention  of  the  jury  to  the  definition  of 
the  two  crimes  of  maiming  and  assault,  said  to  the  jury: 
'  Self-defense  means  that  when  a  person  believes  that  his  life 
is  in  danger,  or  believes  that  he  is  in  imminent  danger  of 
grievous  bodily  harm,  he  has  a  right  to  defend  himself.  The 
law  also  says  that  a  person,  in  defending  himself,  must  use 
no  more  force  than  is  actually  necessary.  He  must,  if  he 
can,  avoid  the  quarrel.  In  other  words,  if  he  can  run  away, 
it  is  his  duty  to  do  so.  While  that  may  not  be  popular  with 
men  when  they  are  assaulted,  yet  that  is  the  law  of  our 
State.'  While  this  charge  was  not  excepted  to,  it  stated  a 
proposition  of  law  which  was  applicable  when  a  homicide 
had  been  committed,  and  not  to  the  right  of  a  person  to 
defend  himself  when  the  act  does  not  consist  of  the  taking 
of  human  life.  I  take  it  that  a  person  who  is  assaulted  by 
another  without  provocation  has  a  right  to  use  sufficient 
force  to  repel  the  assault,  without  running  away,  or  believing 
that  his  life  is  in  danger,  or  that  he  is  in  imminent  danger 
of  grievous  bodily  harm.  In  the  defense  of  his  person  or 
property,  irrespective  of  the  belief  that  there  is  danger  to 
his  life  or  of  grievous  bodily  harm,  a  person  has  a  right  to 
repel  an  assault  and  use  the  necessary  force  for  that  purpose. 


Assault  and  Batteey.  81 

He  must  see  to  it  that  he  does  not  take  life,  except  in  a  last 
extremity;  and  if  he  does,  to  escape  responsibility,  he  must 
prove  that  the  taking  of  life  was  justifiable.  But  it  is  not 
the  law  that  a  person  in  a  public  street  or  public  place  is 
bound  to  submit  to  insults  or  indignities,  followed  by  an 
assault,  although  neither  his  life  nor  bodily  harm  is  seriously 
threatened,  without  resorting  to  sufficient  force  to  repel  the 
assault." 

Defense  of  property. — "  It  is  elementary  that  one  may 
justify  an  assault  and  battery  in  self-defense  or  in  defense 
of  his  possession  of  his  real  or  personal  property.  But  the 
general  mle  is  that  a  right  of  property  merely,  not  joined 
^\dth  the  possession,  will  not  justify  the  owner  in  committing 
an  assault  and  battery  upon  the  person  in  possession,  for  the 
purpose  of  regaining  possession,  although  the  possession  is 
^vrongfully  withheld.  .  .  .  This  rule  is  foimded  upon 
considerations  of  public  policy,  to  prevent  parties  from  dis- 
turbing the  public  peace  by  attempts  to  right  themselves  by 
force  instead  of  resorting  to  the  remedy  by  action."  Bliss  v. 
Johnson,  73  N.  Y.  529,  533. 

"  Unquestionably,  if  one  takes  another's  property  from 
his  possession  without  right  and  against  his  will,  the  owner 
or  person  in  charge  may  protect  his  possession,  or  retake  the 
property,  by  the  use  of  necessary  force.  He  is  not  bound  to 
stand  by  and  submit  to  wrongful  dispossession  or  larceny 
when  he  can  stop  it,  and  he  is  not  guilty  of  assault  in  thus 
defending  his  right,  by  using  force  to  prevent  his  property 
from  being  carried  away.  But  this  right  of  defense  and 
reeapture  involves  two  things :  first,  possession  by  the  owner, 
and,  second,  a  purely  wrongful  taking  or  conversion,  with- 
out a  claim  of  right.  If  one  has  intrusted  his  property  to 
another,  who  afterwards,  honestly  though  erroneously,  claims 
it  as  his  owm,  the  owner  has  no  right  to  retake  it  by  personal 
force.  If  he  has,  the  actions  of  replevin  and  trover  in  many 
cases  are  of  little  use.  The  law  does  not  permit  parties  to 
take  the  settlement  of  conflicting  claims  into  their  own  hands. 
6 


82  Assault  and  Battery. 

It  gives  the  right  of  defense,  but  not  of  redress.  The  cir- 
cumstances may  he  exasperating;  the  remedy  at  law  may 
seem  to  be  inadequate;  but  still  the  injured  party  cannot  be 
arbiter  of  his  own  claim.  Public  order  and  the  public  peace 
are  of  greater  consequence  than  a  private  right  or  an  occa- 
sional hardship.  Inadequacy  of  remedy  is  of  frequent  occur- 
rence, but  it  cannot  find  its  complement  in  personal  violence." 
Kirhy  v.  Foster,  17  E.  I.  437,  438. 

Right    of   recovery   by  paxty   using    excessive    force. — 

In  Elliott  V.  Brown,  2  Wend.  497,  it  was  held  that  the  party 
first  attacked  is  not  entitled  to  maintain  an  action  for  assault 
and  battery  against  the  other  party,  if  he  exceeded  the 
bounds  of  self-defense,  the  court  (p.  500)  saying:  "It  is 
true  that  both  parties  may  be  guilty  of  a  breach  of  the  peace, 
and  may  be  liable  to  punishment  by  indictment  at  the  suit 
of  the  people,  whose  laws  they  have  both  offended;  but  a 
civil  action  cannot  surely  be  sustained  by  each  of  them 
against  the  other.  The  judge  should  have  told  the  jury, 
that  although  the  defendant  might  have  given  the  first  blow, 
yet  if  the  plaintiff  had  used  not  only  more  force  than  was 
necessary  for  self-defense,  but  had  unnecessarily  abused  the 
defendant,  that  then  he  was  not  entitled  to  recover  damages." 
In  Dole  V.  Erskine,  35  IST.  II.  503,  the  court  held  that  imder 
such  circumstances  each  would  have  a  cause  of  action  against 
the  other.  In  that  case  the  court  said,  p.  511 :  "  Up  to  the 
time  that  the  excess  is  used,  the  party  [first]  assaulted  is 
in  the  right.  Until  he  exceeds  the  bounds  of  self-defense  he 
has  committed  no  breach  of  the  peace,  and  done  no  act  for 
which  he  is  liable ;  while  his  assailant,  up  to  that  time,  is  in 
the  wrong,  and  is  liable  for  his  illegal  acts.  Now,  can  this 
cause  of  action  which  the  assailed  party  has  for  the  injury 
inflicted  upon  him,  and  which  may  have  been  severe,  be  lost 
by   acts   of   violence   subsequently  committed   by   himself? 

"  We  think  that  these  are  not  matters  of  set  off ;  that  the 
one  cannot  be  merged  in  the  other,  and  that  each  party  haa 


Assault  a^^d  Battery.  83 

been  guilty  of  a  wrong  for  which  he  has  made  himself  liable 
to  the  other.  There  have,  in  eifect,  been  two  trespasses  com- 
mitted; the  one  by  the  assailant  in  commencing  the  assault, 
and  the  other  by  the  assailed  party  in  using  the  excessive 
force ;  and,  upon  principle,  we  do  not  see  why  the  one  can 
be  an  answer  to  the  other,  any  more  than  an  assault  com- 
mitted by  one  party  on  one  day  can  be  set  off  against  one 
committed  by  the  other  party  on  another  day.  The  only 
difference  would  seem  to  consist  in  the  length  of  time  that 
has  elapsed  between  the  two  trespasses.  In  a  case  where 
excessive  force  is  used,  the  party  using  it  is  innocent  up  to 
the  time  that  he  exceeds  the  bounds  of  self-defense.  When 
he  uses  the  excessive  force,  he  then  for  the  first  time  becomes 
a  trespasser.  And  wherein  consists  the  difference,  except  it 
be  that  of  time,  between  a  trespass  committed  by  him  then, 
and  one  committed  by  him  on  the  same  person  the  day 
after?" 

In  Deagan  v.  Weeks,  67  App.  Div.  410,  414,  the  plaintiff 
sued  to  recover  damages  for  an  alleged  assault  and  battery. 
The  defendant  denied  each  and  every  allegation  of  the  com- 
plaint relating  thereto,  and  set  up  as  counterclaim  an  assault 
and  battery  committed  upon  him  during  the  affray  out  of 
which  the  plaintiff's  alleged  cause  of  action  arose.  The 
plaintiff  demurred,  but  his  demurrer  was  overruled,  and  the 
Appellate  Division,  sustaining  the  determination  of  the 
lower  court,  said :  "  The  sections  of  the  Code  relating  to 
counterclaims  should  have  a  liberal  construction,  and  where 
alleged  causes  of  action,  one  set  forth  in  the  complaint  and 
the  other  in  the  defendant's  answer  as  a  counterclaim,  are 
so  connected  that  they  must  be  determined  on  the  same  evi- 
dence, they  should  be  litigated  and  determined  in  one  action, 
although  a  recovery  cannot  be  had  in  favor  of  either  defend- 
ant or  plaintiff  without  a  finding  that  wholly  defeats  the 
alleged  cause  of  action  of  the  other. 

"  It  does  not  seem  to  us  in  accordance  with  the  spirit  of 
modern  procedure  to  give  the  sections  of  the  Code  quoted 
[§§  500  and  501]  such  a  technical  construction  that  it  might 


8^-  Assault  and  Battesy. 

require  the  trial  court  to  twice  sit  and  hear  exactly  the  same 
facts  in  actions  between  the  same  parties  before  the  proper 
judgment  can  be  rendered  between  them.  We  have  not  over- 
looked the  fact  that  there  are  decisions  in  this  and  other 
States  seemingly  in  conflict  with  the  views  herein  expressed. 
"  We  do  not  intend  by  this  decision  to  express  any  opinion 
as  to  the  right  of  a  defendant  to  interpose  a  counterclaim  in 
a  case  where  he  admits  the  assault  alleged  in  the  complaint 
and  then  alleges  that  the  plaintiff  thereupon  became  the 
aggressor  and  committed  an  assault  upon  him ;  or,  in  an 
action  for  slander  where  he  alleges  that  the  plaintiff  at  or 
about  the  time  mentioned  in  the  complaint  slandered  him,  the 
defendant." 

Provocation :  effect  upon  damages. — ''  Where  there  is  a 
reasonable  excuse  for  the  defendant,  arising  from  the  provo- 
cation or  fault  of  the  plaintiff,  but  not  sufficient  entirely  to 
justify  the  act  done,  there  can  be  no  exemplary  damages,  and 
the  circumstances  of  mitigation  must  be  applied  to  the  actual 
damages.  If  it  were  not  so,  the  plaintiff'  would  get  fidl  com- 
pensation for  damages  occasioned  by  himself.  The  rule 
ought  to  be,  and  is,  practically  mutual.  Malice  aud  provo- 
cation in  the  defendant  are  punished  by  inflicting  damages 
exceeding  the  measure  of  compensation,  and  in  the  plaintiff 
by  giving  him  less  than  that  measure."  Bobison  v.  Rupert, 
23  Pa.  St.  523,  525. 

"  It  still  remains  that  the  plaintiff  provoked  the  trespass, 
was  liimself  guilty  of  the  act  which  led  to  the  disturbance  of 
the  public  peace.  Although  this  provocation  fails  to  justify 
the  defendant  (2  Greenl.  Ev.,  §  98),  it  may  be  relied  upon 
by  him  in  mitigation  even  of  compensatory  damages.  This 
doctrine  is  as  old  as  the  action  of  trespass  (Avery  v.  Ray, 
1  Mass.  11;  Richardson  v.  Il'ine,  42  Conn.  206;  Thomas  v. 
Powell,  7  Carr.  &  P.  807 ;  Lee  v.  Woolsey,  19  Johns.  318 ; 
Corning  v.  Corning,  6  IST.  Y,  103;  Cushman,  v.  Ryan,  1 
Story,  100)  ;  and  is  correlative  to  the  rule  which  permits  cir- 
cumstances of  aggravation,  such  as  time  and  place  of  an. 


False  Impkisonment.  85 

assault,  or  insulting  words,  or  other  circumstances  of  indig- 
nity and  contumely,  to  increase  them."  Kijf  v.  Yomnans, 
86  K  Y.  324,  330. 

To  the  contrary  is  the  following :  "  Jacobs  v.  Hoover,  9 
Minn.  204,  Cushman  v.  Waddell,  Baldwin,  57,  and  McBride 
V.  McLaughlin,  5  Watts,  375,  are  strong  authorities  in  sup- 
port of  the  rule  that  provocative  language  used  by  the  plain- 
tiff at  the  time  of  the  battery  should  be  given  in  evidence 
only  in  mitigation  of  exemplary  damages,  and  that  unless  the 
plaintiff  has  given  the  defendant  a  provocation  amounting 
in  law  to  a  justification  he  is  entitled  to  receive  compensa- 
tion for  the  actual  injury  sustained. 

"  If  provocative  words  may  mitigate,  it  follows  that  they 
may  reduce  the  damages  to  a  mere  nominal  sum  and  thus 
practically  justify  an  assault  and  battery.  But  why  under 
this  rule  may  they  not  fully  justify?  If  in  one  case,  the 
provocation  is  so  great  that  the  jury  may  award  only  nominal 
damages,  why,  in  another,  in  which  the  provocation  is  far 
greater,  should  they  not  be  permitted  to  acquit  the  defendant 
and  thus  overturn  the  well-settled  rule  of  law,  that  word8 
cannot  justify  an  assault.  On  the  other  hand  if  words  can- 
not justify  they  should  not  mitigate.  A  defendant  should 
not  be  heard  to  say  that  the  plaintiff  was  first  in  the  wrong 
by  abusing  him  with  insulting  words  and  therefore,  though 
he  struck  and  injured  the  plaintiff,  he  was  only  partly  in  the 
wrong  and  should  pay  only  part  of  the  actual  damages." 
Goldsmith  v.  Joij,  61  Vt.  488,  498. 


FALSE  IMPKISOKMENT. 

Freedom  of  person. —  "  Freedom  of  the  person  includes 
immunity  not  only  from  the  actual  application  of  force,  but 
from  every  kind  of  detention  and  restraint  not  authorized  by 
law.  The  infliction  of  such  restraint  is  the  wrong  of  false 
imprisonment ;  which,  though  generally  coupled  with  assault, 
is  nevertheless  a  distinct  wrong."  Pollock  on  Torts  (7th  ed.), 
216. 


86  False  Imprisonment. 

Defined. —  ^'A  false  imprisonment  consists  in  the  total,  or 
substantially  total,  restraint  of  a  man's  freedom  of  locomo- 
tion."    Bigelow  on  Torts  (7tli  ed.),  199. 

"  False  imprisonment  is  necessarily  a  \vrongful  interfer- 
ence with  the  personal  liberty  of  an  individual.  The  wrong 
may  be  committed  by  words  alone,  or  by  acts  alone,  or  by 
both,  and  by  merely  operating  on  the  will  of  the  individual 
or  by  personal  violence,  or  by  both.  It  is  not  necessary  that 
the  individual  be  confined  within  a  prison  or  within  walls; 
or  that  he  be  assaulted,  or  even  touched.  It  is  not  necessary 
that  there  should  be  any  injury  done  to  the  individual's  per- 
son, or  to  his  character,  or  reputation.  Xor  is  it  necessary 
that  the  wrongful  act  be  committed  with  malice,  or  ill-will, 
or  even  with  the  slightest  MTongful  intention.  .  .  .  All 
that  is  necessary  is,  that  the  individual  be  restrained  of  his 
liberty  without  any  sufficient  legal  cause  therefor,  and  by 
words  or  acts  which  he  fears  to  disregard."  Comer  v. 
Knowles,  17  Kan.  436,  440. 

Imprisonment  must  be  circumscribing. — "  A  prison  may 
have  its  boundary  large  or  narrow,  visible  and  tangible,  or, 
though  real,  still  in  the  conception  only;  it  may  itself  be 
movable  or  fixed;  but  a  boundary  it  must  have;  and  that 
boundary  the  party  imprisoned  must  be  prevented  from 
passing;  he  must  be  prevented  from  leaving  that  place, 
within  the  ambit  of  which  the  party  imprisoning  would  con- 
fine him,  except  by  prison-breach.  Some  confusion  seems 
.  to  arise  from  confounding  imprisonment  of  the  body 
with  mere  loss  of  freedom:  it  is  one  part  of  the  definition 
of  freedom  to  be  able  to  go  whithersoever  one  pleases ;  but 
imprisonment  is  something  more  than  the  mere  loss  of  this 
power ;  it  includes  the  notion  of  restraint  within  some  limits 
defined  by  a  will  or  power  exterior  to  our  o\vn."  Bird  v. 
Jones,  7  Adol.  &  E.  [N.  S.]  742,  744. 

Essential  elements. —  "  To  constitute  the  injury  of  false 
imprisonment  there  are  two  points  requisite:    1.   The  deten- 


False  Imprisonment.  87 

tion  of  the  person :  and,  2.   The  unlawfulness  of  such  deten- 
tion."   Blackstone  Com.,  III.,  127. 

"  This  action  [false  imprisonment]  was  not  what  would 
formerly  have  been  denominated  case,  .  .  .  ,  but  tres- 
pass. .  .  .  The  material  averment  in  the  complaint  is, 
that  the  defendant  '  unlawfully  seized  and  arrested  the  plain- 
tiff ; '  that  of  malice  and  want  of  probable  cause  may  be 
treated  as  surplusage  or  as  matter  merely  in  aggravation  of 
damages."    AcJcroyd  v.  Ackroyd,  3  Daly,  38,  41. 

Termination  of  criminal  proceeding  not  a  condition  pre- 
cedent.—  "  The  exclusion  of  evidence  of  the  disposition  made 
by  the  grand  jury  of  the  charge  against  the  plaintiff  was  not 
error.  That  evidence  could  have  no  legitimate  bearing  upon 
the  question  of  the  legality  of  the  arrest  by  the  police  officer. 
And  in  this  action  for  false  imprisonment  the  termination  of 
the  criminal  proceeding  against  the  plaintiff  had  no  import- 
ance, although  such  fact  is  essential  in  an  action  for 
malicious  prosecution."  Hopner  v.  McGowan,  116  N.  Y. 
405,  410. 

"  This  action  is  similar  to  the  cognate  one  of  malicious 
prosecution,  and  if  the  defendant  has  been  adjudged  guilty 
of  the  crime,  he  cannot  maintain  a  civil  remedy  against  those 
instrumental  in  securing  his  conviction  so  long  as  the  judg- 
ment stands  unreversed.  The  theory  on  which  each  of  these 
actions  is  sustainable  is  that  the  proceeding  out  of  which  the 
action  arose  has  terminated  successfully  to  the  defendant, 
exonerating  him  from  the  charge  made.  It  would  be  incon- 
sistent to  have  a  judgment  of  a  court  of  competent  jurisdic- 
tion, proving  guilt,  and  a  verdict  by  a  jury  in  a  civil  action, 
based  upon  the  assumption  of  innocence."  Jones  v.  Foster, 
43  App.  Div.  33,  35.  See,  also,  Cuniff  v.  Beecher,  84  Hun, 
137,  140. 

Justification. —  "  When  an  action  for  false  imprisonment  is 
brought  and  defended,  the  real  question  in  dispute  is  mostly, 
though  not  always,  whether  the  imprisonment  was  justified." 
Pollock  on  Torts  (7th  ed.),  217. 


■^  False  Imprisonment. 

Arrests  with  warrant. — "  A  sufficient  judicial  warrant 
takes  away  from  an  imprisonment  the  essential  element  of 
illegality,  and  completely  justifies  an  arrest.     .     .     . 

"  It  is  by  no  means  clea^  when  a  warrant  is  not  sufficient 
to  justify  the  arrest.  If  it  be  void  on  its  face,  it  is,  of  course, 
not  sufficient.  To  be  regular  on  its  face,  the  w^arrant  must 
at  least  charge  the  commission  of  a  criminal  wrong,  and  con- 
form in  other  respects  wdth  statutory  provisions  and  recog- 
nized practice. 

"  Where,  how^ever,  the  warrant  is  void,  either  from  material 
defect  in  its  language,  for  w^ant  of  jurisdiction  of  the  court, 
or  because  of  the  court  having  no  power  to  issue  it,  the  sheriff 
who  executes  it,  the  attorney  who  prepares  it,  the  client  who 
authorizes  it,  and  the  witness  who  causes  the  arrest,  all  are 
liable  at  common  law  for  the  false  imprisonment."  Jaggard 
on  Torts,  I.,  424-426. 

"  The  following  propositions,  I  am  disposed  to  believe,  will 
be  found  to  be  w^ell  sustained  by  reason  and  authority : 

"  That  where  an  inferior  court  has  not  jurisdiction  of  the 
subject-matter,  or  having  it  has  not  jurisdiction  of  the  person 
of  the  defendants,  all  its  proceedings  are  absolutely  void; 
neither  the  members  of  the  court,  nor  the  plaintiff  (if  he  pro- 
cured or  assented  to  the  proceedings),  can  derive  any  pro- 
tection from  them  when  prosecuted  by  a  party  aggrieved 
thereby. 

"  If  a  mere  ministerial  officer  executes  any  process,  upon 
the  face  of  which  it  appears  that  the  court  which  issued  it  had 
not  jurisdiction  of  the  subject-matter  or  of  the  person  against 
whom  it  is  directed,  such  process  will  afford  him  no  protec- 
tion for  acts  done  under  it. 

"  If  the  subject-matter  of  a  suit  is  within  the  jurisdiction 
of  a  court,  but  there  is  a  want  of  jurisdiction  as  to  the  person 
or  place,  the  officer  who  executes  process  issued  in  such  suit 
is  no  trespasser,  unless  the  want  of  jurisdiction  appears  by 
such  process."    Savacool  v.  Bovghton,  5  Wend.  170,  ISO. 

Void  and  irregular  process  distinguished. —  "  It  cannot  be 
disputed  but  that  an  attorney  who  causes  void  or  irregular 


False  Imprisonment.  89 

process  to  be  issued  in  an  action,  which  occasions  loss  or  in- 
jury to  a  party  against  whom  it  is  enforced,  is  liable  for  the 
damages  thereby  occasioned.  In  the  case  of  void  process  the 
liability  attaches  when  the  wrong  is  committed  and  no  pre- 
liminary proceeding  is  necessary  to  vacate  or  set  it  aside,  as 
a  condition  to  the  maintenance  of  an  action.  Process,  how- 
ever, that  a  court  has  general  jurisdiction  to  award,  bnt  which 
is  irregular  by  reason  of  the  non-performance  by  the  party 
procuring  it,  of  some  preliminary  requisite,  or  the  existence 
of  some  fact  not  disclosed  in  his  application  therefor,  must 
be  regularly  vacated  or  annulled  by  an  order  of  the  court, 
before  an  action  can  be  maintained  for  damages  occasioned 
by  its  enforcement.  {Day  v.  Bach,  87  IST.  Y.  56.)  In  such 
cases  the  process  is  considered  the  act  of  the  party  and  not 
that  of  the  court,  and  he  is,  therefore,  made  liable  for  the 
consequences  of  his  act. 

"  Void  process  is  such  as  the  court  has  no  power  to  award, 
or  has  not  acquired  jurisdiction  to  issue  in  the  particular 
case,  or  which  does  not  in  some  material  respect  comply  in 
form  with  the  legal  requisites  of  such  process,  or  which  loses 
its  vitality  in  consequence  of  non-compliance  with  a  condition 
subsequent,  obedience  to  which  is  rendered  essential.  Irregu- 
lar process  is  such  as  a  court  has  general  jurisdiction  to  issue, 
but  which  is  unauthorized  in  the  particular  case  by  reason  of 
the  existence  or  non-existence  of  some  fact  or  circumstance 
rendering  it  improper  in  such  a  case."  Fischer  v.  Langhein, 
103  K  Y.  84,  89. 

Erroneous  process.—  "  There  can  be  no  doubt  of  the  gen- 
eral principle,  that  void  or  irregular  process,  furnishes  no 
justification  to  the  party  for  acts  done  under  it,  with  this 
limitation :  that  if  the  process  is  irregular  only,  so  that  it  is 
merely  voidable,  and  not  void,  it  must  be  set  aside  or  vacated 
before  trespass  can  be  brought.  On  the  other  hand,  it  is 
equally  well  settled  that  if  the  process  was  erroneous  only,  it 
protects  the  party  for  acts  done  under  it  while  in  force,  and 
he  may  justify  under  it  after  it  has  been  set  aside."  Day 
V.  Bach,' 87  K  Y.  56,  60. 


90  False  Imprisonment. 

Arrests  without  a  warrant :  statutory. —  The  right  to   ar- 
H-        rest  \vithout  a  Avarraiit  is  confined  to  criminal  offenses,  and 
is  frequently  regulated  by  statute. 
VI OW      ^^  People  V.  Hochstim,  36  Misc.  5G2,  570,  it  is  said  :  "  The 
\  law  is  that  any  citizen,  or  any  peace  officer,  the  very  same, 

<S.        may  without  a  warrant  arrest  (1)  any  person  who  commits 
any  criminal  offense  in  his  view,  whether  it  he  only  a  mis- 
1i   demeanor,  or  the  graver  crime  called  a  felony ;    and  further, 
that  any  citizen,  or  any  peace  officer,  the  very  same,  may 
^-»  also  without  a  warrant  (2)  arrest  any  person  who  has  actu- 

ally committed  a  felony  although  he  did  not  see  him  commit 
it.  The  ancient  reason  for  this  latter  was  to  prevent  fleeing 
felons  from  escaping  while  a  warrant  was  being  procured. 
But  in  the  case  of  those  lesser  offenses  called  misdemeanors 
by  the  law,  no  citizen,  and,  the  very  same,  no  peace  officer, 
may  make  an  arrest  without  a  warrant  unless  the  offense  is 
committed  in  his  view.  lie  may  not  act  upon  hearsay  or  the 
information  of  any  one  in  respect  of  misdemeanors.  To  again 
state  it,  in  the  matter  of  arresting  without  a  warrant,  whether 
for  a  misdemeanor  or  for  a  felony,  a  private  citizen  and  a 
peace  officer  have  the  very  same  right  and  power  under  the 
law,  namely,  (1)  either  may  without  a  warrant  arrest  a  per- 
son who  commits  any  crime,  whether  misdemeanor  or  felony, 
in  his  view,  and  (2)  either  may  without  a  warrant  arrest  any 
person  who  has  in  fact  committed  a  felony  although  not  in 
his  view,  but  (3)  neither  may  arrest  any  one  without  a  war- 
rant in  the  case  of  a  felony  unless  the  alleg;'  1  felony  has  in 
fact  been  committed.  If  no  felony  has  in  fact  been  conuiiil- 
ted,  then  the  arrest  without  a  warrant  is  in  every  case  unlaw- 
ful and  may  be  lawfully  resisted.  The  law  does  not  justify 
either  an  officer  or  a  private  citizen  in  arresting  for  a  felony 
without  a  warrant  on  mere  suspicion  or  information  that  a 
felony  has  been  committed.  .  .  .  In  a  word,  an  officer, 
the  same  as  a  private  citizen,  is  not  permitted  to  act  on  mere 
grounds  of  belief  on  the  question  of  whether  a  felony  has  in 
fact  been  committed;  nothing  but  the  absolute  fact  that  it 
has  been  committed  will  suffice ;    but  an  officer  is  permitted 


False  Imprisonment.  91 

to  act  on  reasonable  cause  for  belief  on  the  question  of 
whether  the  person  arrested  is  the  person  who  committed  it. 
All  of  this  is  plain  statute  law  (Code  of  Criminal  Procedure, 
§§  177,  183)." 

To  the  same  effect  are  Westbrooh  v.  N.  Y.  Sun  Associatiofi, 
32  Misc.  37,  39,  affirmed  in  58  App.  Div.  562;  People  v. 
Glemion,  37  Misc.  1,  5;  Craven  v.  Bloomingdale,  54  App. 
Div.  2G6,  268,  reversed  in  171  I^.  Y.  439,  but  not  on  this 
point;  and  People  v.  Ilochstim,  76  App.  Div.  25,  28.  Each 
relies  upon  the  provisions  of  the  Code  of  Criminal  Procedure^ 
the  language  of  which,  in  sections  177  and  183,  is  plain  and 
unmistakable,  though  somewhat  unintelligible  in  section  179, 
to  which,  however,  reference  was  not  made.     Those  sections  ^^^^ 

are  as  follows : 

"  §  177.  In  what  cases  allowed. 

"  A  peace  officer  may,  without  a  warrant,  arrest  a  person: 

"  1.  For  a  crime,  committed  or  attempted  in  his  presence. 

"  2.  When  the  person  arrested  has  committed  a  felony, 
although  not  in  his  presence. 

"  3,  When  a  felony  has  in  fact  been  committed,  and  he  has 
reasonable  cause  for  believing  the  person  to  be  arrested  to   ':i*\t\.^.^'^ 
have  committed  it."  *^*^ 

"  §  179.  May  arrest  at  night,  on  reasonable  suspicion  of 
felony. 

"  He  may  also,  at  night,  without  a  warrant,  arrest  any 
person  whom  he  has  reasonable  cause  for  believing  to  have 
committed  a  felony,  and  is  justified  in  making  the  arrest, 
though  it  afterward  appear  that  a  felony  had  been  committed, 
but  that  the  person  arrested  did  not  commit  it." 

"  §  183.  In  what  ca^es  allowed. 
"  A  private _persoii  may  arrest  another : 
"  1.  For  a  crime  committed  or  attempted  in  his  presence ; 
"  2.  When  the  person  arrested  has  committed  a  felony, 
although  not  in  his  presence." 


SQ  FxiLSB    iMPEISOTfTMIiN-T. 

In  section  337  of  TKe  Greater  New  JYork_<Dhartej,  how- 
ever, is  the  following  provision :  "  The  members  of  the  police 
force  shall  possess  in  The  City  of  New  York  and  in  every 
part  of  this  state,  all  the  common  law  and  statutory  powers 
of  constables,  except  for  the  service  of  civil  process,"  etc. 
Substantially  the  same  pro^Tsion  is  found  in  section  8  of 
chapter  569  of  the  Laws  of  1S57,  and,  even  if  it  be  held 
repealed  by  section  962  of  the  Code  of  Criminal  Procedure, 
the  same  was  re-enacted  in  section  277  of  chapter  410  of  the 
Laws  of  1882,  after  the  Code  of  Criminal  Procedure  became 
law,  and  continued  in  section  337  of  The  Greater  Xew  York 
Charter. 

It  must  therefore  be  concluded  that  the  police  force  in  The 
City  of  New  York  not  only  ha^'e  the  poAver  to  arrest,  without 
a  warrant,  pursuant  to  the  provisions  of  sections  177  and  179 
of  the  Code  of  Criminal  Procedure,  but  they  also  have  all 
the  common-law  poAvers  of  constables  thereto  as  well.  The- 
Court  of  Appeals,  in  the  case  of  Snead  v.  Bonnoil,  166  K  Y. 
325,  may  have  recognized  such  to  be  the  law,  although  the 
authority  cited  in  support  was  not  the  proper  one,  for  they 
say  at  page  328 :  "  A  peace  officer  may,  without  a  warrant, 
arrest  a  person  whenever  a  crime  is  committed,  or  attempted, 
in  hia  presence;  w^hen  the  person  arrested  has  committed  a 
felony,  although  not  in  his  presence ;  or  where  he  has  reason- 
able cause  for  believing  the  person  arrested  to  have  committed 
a  felony.     (Code  Crim.  Pro.  sec.  177.)" 

The  powers  of  the  private  citizen,  however,  to  arrest,  with- 
out a  warrant,  have  been  curtailed  by  the  above  provisions  of 
the  Code  of  Criminal  Procedure,  as  will  be  seen  by  compari- 
son with  his  powers  at  common  law. 

Arrests  without  a  warrant:  common  law. —  In  1829,  the 
common-law  ]iowers  of  the  officer  and  of  the  citizen  were  well 
stated  by  Savage,  Ch.  J.,  in  the  case  of  Tlolley  v.  Mix,  3 
AVend.  350,  353,  as  follows:  "  My  understanding  of  the  law 
is,  that  if  a  felony  has  in  fact  been  committed  by  the  person 
arrested,  the  arrest  may  be  justified  by  any  person  without 
warrant,  whether  there  is  time  to  obtain  one  or  not.     If  an 


False  Imprison  ment.  93 

innocent  person  is  arrested  upon  suspicion  by  a  private  indi- 
vidual, such  individual  is  excused  if  a  felony  was  in  fact 
committed  and  there  was  reasonable  ground  to  suspect  the 
person  arrested.  But  if  no  felony  was  committed  by  any 
one,  and  a  private  individual  arrest  without  a  warrant,  such 
arrest  is  illegal,  though  an  officer  would  be  justified  if  he 
acted  upon  information  from  another  which  he  had  reason 
to  rely  on." 

In  Samuel  v.  Payne,  1  Douglas,  359  (1780),  tried  before 
Lord  Mansfield,  it  is  said :  "  At  the  trial,  his  Lordship,  and 
the  counsel  on  both  sides,  looked  upon  the  rule  of  law  to  be, 
that,  if  a  felony  has  actually  been  committed,  any  man,  upon 
reasonable  probable  grounds  of  suspicion,  may  justify  appre- 
hending the  suspected  person  to  carry  him  before  a  magis- 
trate ;  but  that,  if  no  felony  has  been  committed,  the  appre- 
hension of  a  person  suspected  cannot  be  justified  by  any  body. 
His  Lordship  therefore  left  it  to  the  jury  to  consider,  whether 
any  felony  had  been  committed.  The  rule,  however,  was 
considered  as  inconvenient  and  narrow;  because,  if  a  man 
charges  another  with  felony,  and  requires  an  officer  to  take 
him  into  custody,  and  carry  him  before  a  magistrate,  it  would 
be  most  mischievous  that  the  officer  should  be  bound  first  to 
try,  and  at  his  peril  exercise  his  judg-ment  on  the  truth  of  the 
charge.  He  that  makes  the  charge  should  alone  be  answer- 
able." A  note  to  this  case  recites  that  it  is  the  first  determina- 
tion of  the  point,  though  it  had  been  agitated  on  a  demurrer 
to  a  special  justification  so  long  ago  as  the  reign  of  Henry  IV. 
(Year-book,  7  Hen,  4,  p.  35,  pi.  3.)  Six  years  later,  Lord 
Mansfield  apparently  accepted  this  determination  in  the  case 
of  Lechvith  v.  CatchpoJe,  Caldecott's  Rep.  291,  wherein  he 
said :  "  Many  an  innocent  man  has  been  and  may  be  taken 
up  upon  suspicion :  but  the  mischief  and  inconvenience  to 
the  public  in  this  point  of  view  is  comparatively  nothing. 

"  It  is  of  great  consequence  to  the  police  of  the  country." 

Malice  cind  want  of  probable  cause. —  The  existence  of 
malice  and  want  of  probable  cause  are  not  necessary  elements 


94  False  Imprisonment. 

in  the  plaintiff's  case,  in  an  action  for  false  imprisonment. 
They  may  be  introduced  for  the  purpose  of  enhancing  dam- 
ages, but  they  do  not  in  any  sense  constitute  his  cause  of 
action,  because  unlawfulness  of  detention  is  the  gravamen  of 
the  alleged  wrong.  Where  the  defendant  has  made  an  arrest 
without  a  warrant,  and  seeks  to  justify,  he  may  introduce 
proof  of  probable  cause  as  effective  justification,  but,  except 
defendant  be  an  officer,  only  upon  proof  that  a  felony  had  in 
fact  been  committed. 

"  This  case  was  tried  as  though  it  were  an  action  for 
malicious  prosecution.  In  such  an  action  the  burden  was 
upon  the  plaintiff  to  show  a  want  of  probable  cause.  No 
such  evidence  was  given,  and,  therefore,  as  such  an  action, 
the  case  was  properly  disposed  of. 

"  But  the  allegations  of  the  complaint  are  for  an  illegal 
arrest  and  detention.  Such  acts  constitute  what  is  usually 
denominated  an  action  of  false  imprisonment;  an  action  in. 
the  nature  of  a  trespass  for  a  direct  wrong  or  illegal  act,  in 
which  the  defendant  must  have  personally  participated. 
(Johnstone  v.  Sutton,  1  Tenn.  Kep.  544.)  Or  the  act  must 
have  been  by  his  direct  or  indirect  procurement.  (TlopJciiis 
V.  Crowe,  7  C.  «fe  P.  573.)  The  gist  of  such  an  action  is  an 
unlawful  detention,  and  motive  will  be  inferred  so  far,  at 
least,  as  to  sustain  the  action  ;  and  evidence  to  disprove  actual 
motive  only  bears  upon  the  question  of  damages. 

"  Probable  cause,  or  reasonable  ground,  for  suspicion 
against  a  plaintiff,  affords  no  justification  for  an  arrest  or 
imprisonment,  unless  a  felony  has  actually  been  committed ; 
in  which  case  the  burden  of  proving  that  a  felony  had  actually 
been  committed,  and  the  facts  relied  upon  to  establish  prob- 
able cause,  or  reasonable  ground  for  suspicion,  is  upon  the 
defendant."     Burns  v.  Erhen,  40  K  Y.  463,  465. 

"  Even  malicious  motives  and  the  absence  of  probable  cause 
do  not  give  a  party  arrested  an  action  for  false  imprisonment. 
They  may  aggravate  his  damage,  but  have  nothing  whatever 
to  do  with  the  cause  of  action."  Marks  v.  Townsend,  97 
N.  Y.  590,  597. 


IjfJURiES  IN  Family  Relations.  95 


INJURIES  m  FAMILY  RELATIONS 
Fiction  of  service.—  "  It  seems  that  prior  to  the  statute  of 
laborers  (23  Edw.,  III.,  lodt'J)  no  action  at  law  lay  for  any 
injury  involved  in  such  relations.  The  preamble  of  this  stat- 
ute recites  the  mortality  consequent  on  the  pestilence  of  that 
time,  and  referred  to  '  the  grievous  incommodities  which  of 
lack,  especially  of  plowmen  and  laborers,  may  hereafter 
come.'  Among  other  provisions,  it  imposed  heavy  penalties 
on  every  person  who  procured,  harbored,  or  retained  the  ser- 
vant of  another  during  the  time  he  had  contracted  to  serve. 
From  this  statute  arose  the  actions  commonly  called  'per 
quod  actions,'  because  of  the  peculiar  wording  of  the  plead- 
ings. The  action  lay  under  the  statute  by  the  employer 
against  a  third  person  who  interfered  with  the  relationship 
of  his  servant,  '  per  quod  servitium  amisit/  This  was  easily 
adapted  so  as  to  be  used  by  a  father  for  the  seduction  of  his 
child,  and  by  a  husband  for  abuse  by  a  stranger  of  his  wife 
(in  the  form  of  pleading,  ^  per  quod  consortium  amisit.' )" 
Jaggard  on  Torts,  I.,  447-448. 

Negligent  injury  to  child:  right  to  recover  for  loss  of 
services.—  "  It  seems  to  be  the  doctrine  of  the  law  of  Eng- 
land, that  the  right  of  a  parent  to  maintain  an  action  for  an 
injury  to  his  minor  child  from  the  tortious  act  of  a  third 
person  is  founded  exclusively  upon  the  loss  of  service,  and 
that  the  parent  has  no  remedy  even  for  expenses  incurred 
unless  the  child  is  old  enough  to  be  capable  of  rendering 
some  act  of  service  and  the  relation  of  master  and  servant, 
express  or  implied,  exists  between  them.  .  .  .  But  when 
the  action  is  maintainable  on  the  ground  of  loss  of  service, 
then  both  by  the  law  of  England  and  of  this  country,  the 
parent  may  claim  indemnity,  not  only  for  the  actual  loss  of 
service  to  the  time  of  the  trial,  but  also  for  any  loss  of  service 
during  the  child's  minority,  which,  in  the  judgment  of  the 
jury  and  according  to  the  evidence,  will  be  sustained,  and 
for  expenses  necessarily  incurred  by  the  parent  in  the  cure 


96  Injuries  in  Pamii^y  Eexations. 

and  care  of  the  child  in  consequence  of  the  injury. 
The  English  rule,  which  denies  to  the  parent  any  remedy  for 
medical  or  other  expenses  incurred  in  consequence  of  the 
injury  to  the  child,  except  as  incident  to  the  loss  of  service, 
ignores  the  parental  relation  and  obligation  as  an  independent 
ground  of  recovery,  although  it  may  be  manifest  that  the 
parent  had  sustained  a  pecuniary  loss  as  the  proximate  result 
of  the  wrong. 

********* 
"  The  right  of  the  parent  in  an  action  for  loss  of  service 
of  a  child  disabled  by  a  tortious  injury,  to  recover  for  pros- 
pective loss  of  service  during  the  child's  minority  is  well 
settled.  These  damages  are,  however,  of  necessity,  to  a  great 
extent  speculative  or  conjectural.  There  are  many  contin- 
gencies which  may  deprive  the  parent  of  the  services  of  a 
child,  and  even  make  the  child  a  pecuniary  burden  to  the 
parent,  although  the  particular  injury  had  not  happened. 
The  child  may  die  from  disease  or  other  accident,  or  the 
parent  may  die.  .  .  .  But  as  only  one  action  can  be 
maintained  against  a  wrongdoer  for  a  single  wrong,  the  law, 
from  necessity,  permits  consequences  not  yet  fully  ascer- 
tained, but  which  are  reasonably  certain  to  happen,  to  be 
anticipated,  and  a  jury  is  allowed  to  estimate  the  damages 
for  future  loss  of  service  in  the  light  of  experience  and  of 
such  evidence  as  can  be  given. 

"  In  the  absence  of  controlling  authority,  we  are  of  opin- 
ion that  in  an  action  by  a  parent,  founded  on  loss  of  service 
of  the  child,  only  expenses  actually  incurred  by  the  parent 
for  medicine  or  medical  attendance,  or  which  are  immediately 
necessary  to  be  incurred,  are  recoverable  as  incident  to  the 
main  cause  of  action,  and  that  future,  prospective,  contin- 
gent expenses  of  this  kind  are  recoverable  only  in  an  action 
by  the  child."  Cuming  v.  Brooklyn  City  E.  li.  Co.,  109 
jST.  Y.  05,  06-98. 

Negligent  injury  to  wife:  right  to  recover  for  loss  of  ser- 
vices.—  "  At  common  law  when  a  married  woman  was  in- 


Injuries  in"  Family  Eelations.  97 

jured  in  her  person,  she  was  joined  with  her  husband  in  an 
action  for  the  injury,  and  in  such  an  action  nothing  could  be 
recovered  for  loss  of  service  or  for  the  expenses  to  which  the 
husband  had  been  subjected  in  taking  care  of  and  curing  her. 
For  such  loss  of  service  and  expenses  the  husband  alone  could 
sue."    Brool-s  v.  Schwerin,  54  N.  Y.  343,  348. 

Instantaneous  death  of  wife  or  child :  no  recovery  for  loss 
of  services. — "  It  clearly  was  the  rule  at  common  law  that  no 
civil  action  would  lie  for  causing  the  death  of  a  hiunan  being. 
(Cooley  on  Torts,  *262.)  AVhile  a  husband  or  parent  might 
maintain  an  action  for  a  wrong  causing  loss  of  services  from 
a  wife  or  child,  if  the  injury  resulted  in  death,  this  could  not, 
at  the  common  law,  be  taken  into  account  either  as  a  ground 
of  action  or  as  an  aggravation  of  damages,  and  the  plaintiff's 
recovery  would  be  limited  to  loss  of  service  intermediate  the 
injury  and  the  death.  (Cooley  on  Torts,  *226.)  The  exact 
question  was  determined  by  the  Court  of  Appeals  in  Green 
V.  Hudson  Biver  R.  B.  Co.  (2  Abb.  Ct.  App.  Dec.  277). 
Since  the  time  of  that  decision,  I  cannot  find  that  there  has 
ever  been  in  this  State  a  contention  for  the  contrary  rule.  Of 
course,  for  many  years  the  statute  has  prescribed  a  remedy 
for  such  wrongs.  An  action  for  a  wrongful  act  causing  the 
death  of  any  person  may  be  maintained  by  the  executor  or 
administrator  of  such  person  for  the  benefit  of  his  next  of 
kin.  (Code  Civ.  Proc.  §  1902)."  Sorensen  v.  Balahan,  11 
App.  Div.  164,  165.  See,  also,  Ohnmacht  v.  ML  Morris  El. 
Light  Co.,  66  App.  Div.  482. 

Reason  of  the  rule. —  The  case  of  Green  v.  Hudson  River 
R.  B.  Co.,  2  Abb.  Ct.  App.  Dec.  277,  decided  that  an  action 
cannot  be  maintained  by  a  husband  for  damages  arising  from 
the  instantaneous  killing  of  his  wife  by  the  negligence  of  the 
defendants.  Leonard,  J.,  in  the  course  of  his  opinion  (p.  282) 
says:  "  The  subject  was  very  fully  and  learnedly  considered 
by  Justice  Bacon,  when  this  case  was  before  him  at  special 
term,  in  an  opinion  afterward  adopted  at  the  general  term 
-on  appeal  and  now  reported  in  28  Barb.  9." 
7 


98  L\Jurai:s  in  Family  Kelations, 

The  reason  for  the  rule  as  expressed  by  Bacon,  J.,  (28 
Barb.  9,  21)  is  as  follows:  "  An  action  by  a  husband  for  the 
loss  of  his  wife  by  the  careless  and  negligent  act  of  a  third 
party,  can  only  be  sustained  where  some  period  intervenes 
between  the  time  of  the  injury  and  the  time  of  dissolution, 
during  which  he  could  be  said  to  have  suffered  the  loss  of  her 
service  and  society,  and  incurred  expense  and  underwent 
anxiety  and  distress  on  her  account.  Where  death  is  the 
concomitant  of  the  collision,  and  life  departs  at  the  instant 
the  shock  is  received,  no  action  for  loss  of  service  can  be  sus- 
tained, because  there  is  no  time  during  her  life,  when  it  can 
be  said  that  the  husband  has  lost  the  service  and  society  of 
his  wife  in  consequence  of  the  injury  complained  of.  This 
may  be  thought  a  narrow  ground  on  v/hich  to  place  any  right 
of  recovery,  but  there  is  no  other  on  which  the  common  law 
rule  can  be  overcome,  which  declares  that  the  mere  death  of 
a  human  being  cannot  be  complained  of  as  a  civil  injury,  to 
be  compensated  in  damages."  And  the  same  Justice  (p.  15) 
says :  "  It  would  savor  somewhat  more  of  judicial  knight 
errantry,  than  of  legal  prudence,  to  attempt  to  unsettle  what 
has  been  deemed  at  rest  for  more  than  two  hundred  and  fifty 
years." 

An  illogical  exception.— In  McGovern  v.  N.  Y.  C.  &  H. 

R.  R.  R.  Co.,  67  N.  Y.  417,  the  court  held  that  damages  for 
loss  of  service  may  be  included  in  the  "  pecuniary  injuries  " 
and  be  recovered  by  the  legal  representative  in  the  statutory 
action.  The  statute  makes  no  provision  for  such  recovery, 
and  the  next  of  kin  are  not  entitled  to  recover  such  damage ; 
if  the  parent  be  so  entitled,  compliance  with  the  statute,  that 
"  the  damages  recovered,  .  .  .  ,  must  be  distributed 
by  the  plaintiff,  as  if  they  were  unbeqiieathed  assets  "  (C.  C 
P.,  §  1903),  would  seem  to  be  possible  in  those  cases  only 
where  the  parent  is  the  sole  survivor,  and  could  not  be  main- 
tained in  all  cases,  on  behalf  of  those  who  simply  stood  in  loco 
parentis  to  the  deceased  child.  However,  the  court  (p.  424) 
said :    "  Assuming,  as  seems  to  have  been  held  in  Ford  v. 


Injuries  in  Family  REiLATioNs.  99 

Monroe  (20  Wend.  210),  that  a  father  can  recover  damages 
for  the  loss  of  service  of  his  minor  son,  against  a  person  Avho 
negligently  caused  his  death,  to  be  computed  and  ascertained 
from  the  time  of  his  death  until  the  time  when  the  son,  if 
living,  would  have  attained  his  majority,  the  question  arise*^ 
whether,  in  an  action  brought  by  the  father,  as  administrator, 
under  the  statute,  the  entire  damages  may  be  recovered  in- 
cluding the  loss  of  service  when  as  in  this  case  the  father 
elects  to  proceed  for  and  claim  his  whole  damages  in  the 
statutory  action,  and  the  recovery  is  for  his  exclusive  benefit. 
"  W3  are  inclined  to  the  opinion  that  in  such  a  case  dam- 
ages for  the  loss  of  service  may  be  included  in  the  recovery 
as  a  part  of  the  pecuniary  loss  to  the  next  of  kin  of  the 
deceased,  resulting  from  his  death,  and  that  a  recovery  will 
bar  another  action  for  the  same  damages  by  the  father  as 
such.  The  point  is  certainly  not  free  from  difficulty,  but 
this  construction  of  the  statute  is,  we  think,  permissible,  and 
it  is  convenient,  avoiding  as  it  does  the  necessity  which  would 
otherwise  exist  of  splitting  up  what  is  substantially  a  single 
claim,  and  bringing  two  actions  for  its  recovery.  We  confine 
our  opinion  to  the  precise  case  presented,  assuming,  on  the 
authority  of  Ford  v.  Monroe,  that  the  father  has  a  right  of 
action,  independent  of  the  statute,  for  loss  of  service." 

Loss  of  service  and  of  society  distinguished. —  In  Cregin 
V.  Brooklyn  Crosstoiun  R.  R.  Co.,  75  X.  Y.  192  and  83  K  Y. 
595,  an  action  was  brought  by  a  husband  for  wrongful  injury 
to  the  person  of  his  wdfe,  and  the  damage  suffered  was  al- 
leged to  be  the  loss  of  her  services  and  society.  Pending  the 
action,  but  before  trial,  the  husband  died,  and  the  action  was 
revived.  Upon  the  question  of  survival  the  Court  of  Appeals 
held  that  "  while  the  cause  of  action  was  in  one  sense  single, 
his  right  to  damages  therefor  was  compound,  and  consisted 
of  several  and  diverse  elements.  The  loss  of  his  wife's  ser- 
vices, the  expenses  necessarily  incurred  by  reason  of  the  in- 
jury, were  a  pecuniary  loss,  and  diminished  his  estate,  and  so 
survived  to  his  administrator ;  but  the  loss  of  his  wife's  so- 


100'  Injuries  in  Family  Relations. 

ciety,  and  the  comforts  of  that  society,  and  the  right  of  action 
for 'that,  died  with  him."     (83  K  Y.  599.) 

The  same  may  be  said  iu  case  of  a  child  negligently  in- 
jured. The  action  by  the  parent  would  be  for  loss  of  service, 
not  of  society,  and  the  injury  would  be  to  the  property  rights 
or  interests  of  the  parent,  unaffected  by  the  rule  that  a  per- 
sonal action  dies  with  the  person.  But  in  case  of  seduction 
the  court  liolds  otherwise,  on  the  ground  that  in  such  an 
action  the  cause  is  brought  on  the  theory  of  the  relation  of 
master  and  servant,  while  recovery  is  had  on  the  theory  of  the 
relation  of  parent  and  child,  practically  likening  family  mor- 
tification and  disgTace  to  loss  of  society.  HoUiday  v.  Parker, 
23  Hun,  71. 

Contributory  negligence  of  wife  or  child. —  "  AYhen  a  par- 
ent or  master  sues,  for  his  oioi  benefit,  to  recover  damages 
for  the  technical  loss  of  service  caused  to  him  by  the  injury 
of  a  child  or  servant,  the  contributory  negligence  of  the  actual 
plaintiff,  or  his  agent,  is  of  course  a  good  defense.  And  in 
such  an  action  any  contributory  negligence  of  the  child  or 
servant,  which  would  suffice  to  bar  an  action  brought  in  his 
name,  will  also  preclude  a  recovery  by  the  parent  or  master." 
Shearman  &  Redfield  on  Xegligence  (5tli  ed.),  §  71,  citing 
Honegsherger  v.  Second  Ave.  R.  R.  Co.,  2  Abb,  Ct.  App. 
378,  382,  and  Burhe  v.  Broadway  &  Seventh  Ave.  R.  R.  Co., 
49  Barb.  529,  531,  which  have  been  overruled,  but  not  on 
this  point. 

The  same  w^ould  seem  to  be  true  in  the  case  where  a  hus- 
band sues  to  recover  for  loss  of  services  of  his  wife,  and  in 
!IS[ew  York  is  so  recognized ;  but,  in  Honey  v.  Chicago,  B.  & 
Q.  Ry.  Co.,  59  Fed.  Eep.  423,  427,  the  court,  after  a  con- 
sideration of  statutes  that  had  relieved  the  wife  of  all  com- 
mon-law disabilities  and  of  the  husband  of  responsibility  for 
the  torts  of  his  wife,  says:  "The  negligence  of  the  wife 
cannot,  therefore,  be  availed  of  as  a  defense  to  the  husband's 
action  on  the  ground  that  he  stands  in  the  position  of  an 
assignee  or  representative  of  a  right  of  action  accruing  to 


Injuries  in  Family  IJelations.  101 

the  wife,  or  upon  the  theory  that  his  right  of  action  is  derived 
through  her.  The  husband's  right  of  action  legally  and 
logically  is  based  upon  the  negligence  of  the  defendant,  re- 
sulting in  an  invasion  of  his  legal  rights,  and  not  upon  any 
right  of  action  accruing  to  or  derived  from  the  wife." 

Seduction  defined.—  Seduction  is  "  the  act  of  a  man  in 
enticing  a  woman  to  commit  unlawful  sexual  intercourse  with 
him,  by  means  of  persuasion,  solicitation,  promises,  bribes, 
or  other  mrp.ns,  without  the  employment  of  force."  Black's 
Law  Dictionary. 

Theory  of  action  for  seduction,  and  measure  of  damages. — • 

The  parent,  or  one  standing  in  loco  'parentis,  may  maintain 
an  action  for  the  seduction  of  a  daughter.  The  legal  basis 
of  the  action  is  the  injury  to  the  right  to  command  services ; 
but  the  measure  of  damages  comprehends  the  injury  to  the 
dignity  and  reputation  of  the  parent.  That  is,  the  damages 
are  measured  not  by  the  actual  value  of  the  services  lost,  but 
by  the  injury  to  the  home,  reputation  and  feelings  of  the 
parent.  As  the  cause  of  action  is  based  upon  a  fiction,  it 
may  be  maintained  whether  the  seduced  party  consented  to 
or  resisted  the  intercourse.  It  must  appear  "  that  the  girl 
was  debauched  without  her  father's  consent."  Lawrence  v. 
Bpence,  99  N,  y.  669,  670. 

"  The  gi'ound  of  the  action  has  often  been  considered  tech- 
nical, and  the  loss  of  service  spoken  of  as  a  fiction,  even 
before  the  courts  ventured  to  place  the  action  upon  the  mere 
right  to  claim  the  services ;  they  frequently  admitted  the  most 
trifling  and  valueless  acts  as  sufficient.  In  the  case  of  Clark 
V.  Fitch,  2  Wendell,  459,  there  was  no  proof  of  actual  loss. 
And  Martin  v.  Payne,  9  Johns.  R.  387,  was  decided  upon 
the  ground  that  none  were  necessary.  The  only  actual 
liability  of  the  father  that  appeared  in  the  former  case,  were 
for  the  expenses  of  the  lying  in,  which  have  never  been 
regarded  as  the  foundation  of  the  suit ;  they  are  received  in 
evidence  only  by  way  of  enhancing  the  damages.     It  is  ag- 


102  Injuries  in  Family  Ixelations. 

parent  from  a  perusal  of  the  modern  cases,  and  elementary 
writers  in  England,  upon  this  subject,  that  the  old  idea  of 
loss  of  menial  services,  which  lay  at  the  foundation  of  the 
action,  has  gradually  given  way  to  more  enlightened  and 
refined  views  of  the  domestic  relations :  these  are,  that  the 
services  of  the  child  are  not  alone  regarded  as  of  value  to  the 
parent.  As  one  of  the  fruits  of  more  cultivated  times,  the 
value  of  the  society  and  attentions  of  a  virtuous  and  innocent 
daughter,  is  properly  appreciated ;  and  the  loss  sustained  by 
the  parent  from  the  corruption  of  her  mind  and  the  defile- 
ment of  her  person,  by  the  guilty  seducer,  is  considered 
ground  for  damages,  consistent  even  with  the  first  principles 
of  the  action.  The  loss  of  these  qualities,  even  in  regard  to 
menial  services,  would  necessarily  greatly  diminish  their 
value."    Ileivitt  v.  Prime,  21  Wend.  79,  82^ 

"  The  common  law  gave  the  father  an  action  for  the  seduc- 
tion of  his  daughter,  but  regarded  it  as  an  action  of  trespass 
for  assaulting  his  servant,  wdiereby  he  lost  her  services ;  later, 
an  action  on  the  case  was  allowed,  and  it  is  now  well  settled 
that  the  action  may  be  brought  in  either  form.  The  action 
was  based  upon  the  relation  of  master  and  servant,  and  not 
upon  that. of  parent  and  child,  and  the  measure  of  damages 
was  such  only  as  a  master  would  recover  for  a  disabling 
injury  to  his  servant.  The  extent  of  the  recovery  has  been 
enlarged  by  the  courts  from  the  necessity  of  the  case,  rather 
than  from  the  principles  which  govern  the  action,  until  com- 
pensation is  awarded  to  the  parent,  as  such,  for  the  shame 
and  mortification  wdiich  that  wrong  brings  upon  him  and  his 
family,  No  action  could  be  maintained  by  the  father  for  the 
injury  in  his  parental  capacity,  but  in  tlic  struggle  between 
substantial  justice  to  the  parent  and  the  precedents  in  actions 
for  seduction,  the  courts  have  clung  to  the  latter  and  striven 
to  attain  the  former,  until  the  anomaly  has  been  produced 
of  requiring  the  action  to  be  prosecuted  by  the  father  for 
an  injury  inflicted  upon  him  in  his  relation  as  master,  and 
permitting  a  recovery  in  his  relation  of  parent."  XXI. 
Am.  &  Eng.  Enc.  of  Law  (1st  ed.),  1009. 


Injuries  in  Family  Relations,  103 

Right  to  command  services. —  ''It  is  now  fully  settled 
both  in  England  and  here,  Maunder  v.  Venn,  1  Mood.  & 
Malk.  323;  Peake's  N.  P.  55,  233;  2  Stark.  Ev.  721;  9 
Johns.  E.  387 ;  2  Wendell,  459 ;  7  Carr.  &  Payne,  528,  that 
acts  of  service  by  the  daughter  are  not  necessary ;  it  is  enough 
if  the  parent  has  a  right  to  command  them,  to  sustain  the 
action.  If  it  were  otherwise,  says  Littledale,  J.  in  Maunder 
V.  Venn,  no  action  could  be  maintained  for  this  injury  in  the 
higher  ranks  of  life,  where  no  actual  services  by  the  daughter 
are  usual."    Heiuitt  v.  Prime,  21  Wend.  79,  81. 

Adult  daughter. — "  It  has  frequently  been  decided,  that 
where  the  daughter  was  more  than  twenty-one  years  of  ago 
there  must  exist  some  kind  of  service ;  but  the  slightest  acts 
have  been  held  to  constitute  the  relation  of  master  and 
servant  in  such  a  case.  In  Bennett  v.  Alcott,  2  Term  Rep. 
166,  the  daughter  was  thirty  years  of  age,  and  Buller, 
Justice,  held  that  even  milking  cows  was  sufficient.  But 
where  the  daughter  was  over  twenty-one,  and  in  the  service 
of  another,  as  in  Postlethtvaite  v.  Par'kes,  3  Burr.  1878,  the 
action  is  not  maintainable.  In  Johnson  v.  M'Adam,  cited 
by  Topping  in  Dean  v.  Peel,  Wilson,  J.,  said  that  where  the 
daughter  was  under  age  he  believed  the  action  was  main- 
tainable, though  she  was  not  part  of  the  father's  family  when 
she  was  seduced,  but  when  she  was  of  age,  and  no  part  of 
the  father's  family,  he  thought  the  action  not  maintainable." 
Martin  v.  Payne,  9  Johns.  387,  390. 

Action  for  seduction  does  not  abate  by  death  o£  father. — 

"  An  action  commenced  by  a  father  to  recover  damages  for 
the  seduction  of  his  minor  daughter  does  not  abate  by  his 
death,  but  survives  to  the  mother  of  such  daughter,  who  may 
recover  both  actual  and  exemplary  damages  therein  to  the 
same  extent  as  though  the  original  party  j)laintiff  had  lived." 
§  764,  Code  Civ.  Pro. 

No  right  of  action  by  seduced  party. — The  seduced  party 
has  no  civil  remedy  against  her  seducer,  because  volenti  non 
fit  injuria. 


lOi  Injuries  in  Family  Relations. 

"  Xo  case  lias  been  cited  to  sliovv'  that  a  person  seduced 
could  maintain  an  action  for  such  seduction,  because  the  per- 
son seduced  assents  thereto.  The  only  mode  in  which  the 
action  has  ever  been  maintained  has  been  by  bringing  such 
action  in  the  name  of  some  person  having  a  right  to  the 
services  of  the  person  seduced,  and  allowing  damages  to  be 
recovered,  not  only  for  actual  loss  of  service,  but  for  a  sum 
sufficient  also  to  punish  the  seducer;  but  such  action  can 
never  be  maintained  in  the  name  of  the  party  seduced." 
Hamilton  v.  Lomax,  26  Barb.  615,  617. 

If  the  female  resist  to  the  best  of  her  ability,  and  inter- 
course is  accomplished  in  defiance  of  resistance,  she  may 
maintain  an  action  to  recover  damages  for  the  assault,  and 
the  maxim  volenti  non  fd  injuria  does  not  apply.     Dean  v. 
Baplee,  145  N.  Y.  319.     The  fact  that  the  female  is  under 
the  so-called  statutory  age  of  consent  should  make  no  differ- 
ence so  far  as  the  question  of  consent  is  concerned  in  a  civil 
action,  although  otherwise  in  a  criminal  action.     That  '''  a 
person  who  perpetrates  an  act  of  sexual  intercourse  with  a 
female,  not  his  wife,  under  the  age  of  eighteen  years,  under 
circumstances  not  amounting  to  rape  in  the  first  degree,  is 
guilty  of  rape  in  the  second  degree,  and  punishable  with  im- 
prisonment for  not  more  than  ten  years  "  (K  Y.  Penal  Code, 
§  278,  sub.  5),  is  not  necessarily  liable  to  a  civil  action  at 
the  instance  of  the  female,  for  "  that  act  eliminated  the  ques- 
tion of  consent  or  resistance  from  the  case  of  an  assault  upon 
a  female  under  that  age  on  the  trial  of  a  criminal  charge  '' 
{Dean  v.  Raplee,  supra,  326),  not  necessarily   in   a   civil 
action.    However,  in  Graham  v.  \Yallace,  50  App.  Div.  101, 
an  "  action  without  precedent/'  the  court  said,  "  the  ques- 
tion to  be  decided  is  whether  a  female  ward  may  maintain 
an  action  in  her  own  behalf  to  recover  damages  of  her  per- 
sonal guardian  for  seduction  when  she  was  under  the  statu- 
tory age  of  consent,"  and  held  that  the  guardian  was  liable, 
saying  (at  page  107),  "The  seduction  of  the  ward  by  her 
guardian  is  not  merely  a  breach  of  moral  duty  —  or  social 
wrong  of  which  the  law  takes  no  cognizance  —  but  it  is  also 


Injuries  in  Family  Relations.  105 

a  violation  of  the  legal  obligations  assumed  by  him,  and  it 
may  properly  be  deemed  a  legal  Avrong.  The  existence  of  the 
relation  of  guardian  and  ward  adds  to  the  turpitude  of  the 
defendant's  conduct,  not  only  from  a  moral  point  of  view, 
but  in  view  of  that  relation ;  his  conduct  constitutes  a  willful 
violation  of  his  oath  and  of  his  legal  obligation  to  the  ward, 
besides  being  a  breacli  of  the  criminal  law,  the  ward  being 
under  the  age  of  legal  consent.  Since  the  ward  cannot,  in  a 
legal  sense,  give  consent  to  the  commission  of  the  immoral 
act,  and  the  seduction  is  condemned  by  the  criminal  laAV, 
the  guardian  ought  not  to  be  permitted  to  avail  himself  of 
the  maxim  volenti  non  fit  injuria  as  a  defense  to  an  action 
for  damages  occasioned  by  the  wrong.  The  ward  being  en- 
titled to  proper  moral  training  by  her  guardian,  he  is  under 
legal  obligation  to  refrain  from  taking  advantage  of  the  trust 
and  confidence  reposed  in  him  and  to  abstain  from  corrupt- 
ing her  morals,  ruining  her  character  or  stealing  her  virtue. 
The  ward  cannot  waive  performance  of  this  duty  or  surren- 
der these  rights  of  protection.  Vv'hen  the  g-uardian  thus 
betrays  his  trust  and  ruins  the  morals,  the  character  and 
reputation  of  his  ward,  he  should  not  be  heard  to  say  in  a 
court  of  justice,  by  way  of  legal  excuse  or  justification  for 
the  seduction,  that  the  ward  was  capable  of  consenting.  Con- 
sent obtained  under  such  circumstances  is  no  consent  and 
should  stand  for  naught.  It  is  essential  to  the  preservation 
and  enforcement  of  the  ward's  right  of  protection  in  her 
chastity  and  virtue  that  a  violation  of  this  right  by  her 
guardian  should  not  pass  with  impunity,  but  that  it  should 
be  vindicated  and  the  seducer  punished  on  the  civil  as  well 
as  on  the  criminal  side  of  the  court." 

Seduction  under  promise  of  marriage. —  "  §  284.  A  per- 
son who,  under  promise  of  marriage,  seduces  and  has  sexual 
intercourse  with  an  unmarried  female  of  previous  chaste 
character,  is  punishable  by  imprisonment  for  not  more  than 
five  years,  or  by  a  fine  of  not  more  than  one  thousand  dollars, 
or  by  both. 


100  Injuries  ix  Family  Relatioiv^s. 

"  §  285.  Tlie  subsequent  intermarriage  of  the  parties,  or 
the  lapse  of  two  years  after  the  commission  of  the  offense 
before  the  finding  of  an  indictment,  is  a  bar  to  a  prosecution 
for  a  violation  of  the  last  section. 

"  §  286.  Xo  conviction  can  be  had  for  the  offense  speci- 
fied in  section  two  hundred  and  eightj-four,  upon  the  testi- 
mony of  the  female  seduced,  unsupported  by  other  evidence." 
N.  Y.  Penal  Code. 

In  case  of  seduction  under  promise  of  marriage,  the  parent 
is  entitled  to  maintain  an  action  for  the  tort  committed. 
Wliile  the  seduced  party  cannot  maintain  an  action  ex  delicto 
on  the  ground  that  volenti  non  fit  injuria,  she  is  able  to  sue 
for  breach  of  contract,  in  which  action  she  practically  recov- 
ers damages  as  for  a  tort. 

Measure  of  damages  for  breach  of  marriage  contract  un- 
accompanied by  seduction.—  In  the  case  of  Tliorn  v.  Knapp, 
42  !N.  Y.  474,  which  was  an  action  to  recover  damages  for 
a  breach  of  promise  to  marry,  unaccompanied  by  seduction, 
Earl,  Ch.  J.  (at  p.  477),  said:  "  It  is  the  policy  of  the  law 
to  encourage  matrimony,  and  society  has  an  interest  in  con- 
tracts of  marriage  both  before  and  after  they  are  consum- 
mated. A  man  who  enters  into  a  contract  of  marriage  with 
improper  motives,  and  then  ruthlessly  and  unjustifiably 
breaks  it  off,  does  a  wrong  to  the  woman,  and  also,  in  a  more 
remote  sense,  to  society,  and  he  needs  to  be  punished  in  the 
interest  of  society,  as  well  as  the  man  who  commits  a  tort 
under  circumstances  showing  a  bad  heart.  The  rule  of  dam- 
ages applicable  to  ordinary  contracts  would  be  wholly  inade- 
quate." And  in  the  same  case  E.  Darwin  Smith,  J.  (at  p. 
482),  said:  "The  acti\)n  for  the  breach  of  the  contract  of 
marriage,  though  in  form  of  an  action  of  assumpsit,  is,  in 
fact,  and  always  has  been  since  it  was  sustained  at  common 
law,  in  respect  to  this  question  of  damages,  really  in  the 
nature  of  an  action  for  a  tort.  Damages  in  this  action  have 
never  been  limited  to  the  simple  rule  governing  actions  upon 
simple  contracts  for  the  payment  of  money.     This  court  as- 


Injuries  in  Family  Relations.  107 

serted  a  different  rule  in  the  case  of  Johnson  v,  Jenkins,  24 
N.  Y.  252.  In  this  case,  which  was  an  action  like  this,  for  a 
breach  of  promise  to  marry,  the  judge  at  the  circuit  had 
charged,  that  the  action  was  of  a  class  of  cases  for  which  the 
law  allows  what  are  called  aggravated  damages,  that  is  dam- 
ages beyond,  and  in  no  way  measured  by,  any  proof  of  actual 
pecuniary  loss  or  injury.  Judge  Allen  said,  in  respect  to 
this  charge:  '  By  this,  I  understand  that  the  jury  was  told, 
that  in  this  class  of  actions,  as  in  libel,  slander,  seduction, 
criminal  conversation,  etc.,  they  are  at  liberty  to  give  what 
are  termed  punitive  damages,  as  distinguished  from  compen- 
satory damages;'  .  .  .  The  learned  judge  also  said: 
'  That  damages  in  this  class  of  cases  may  be  enhanced  by  such 
facts  and  circumstances  as  aggravated  the  injury  itself,  as 
adding  to  the  indignity  and  contumely,  increasing  mental 
agony,  and  bringing  public  disgi-ace  and  consequent  loss  of 
reputation  upon  the  injured  party.'  " 

Measure  of  damages  for  breach  of  marriage  contract  ac- 
companied by  seduction. —  lu  the  case  of  ^Vells  v.  Padgett, 
8  Barb.  323,  which  was  an  action  to  recover  damages  for 
breach  of  promise  to  marry,  accompanied  by  seduction. 
Mason,  J.  (at  p.  325),  said:  "There  are  two  objections 
raised  to  allowing  the  seduction  to  aggravate  the  damages  in 
an  action  for  a  breach  of  promise  of  marriage.  The  first  is, 
it  is  said  the  parties  are  in  pari  delicto;  and  the  second  is, 
that  the  action  for  seduction  is  given  to  the  parent,  or  to  hira 
who  stands  in  loco  parentis.  The  first  objection,  in  my  opin- 
ion, is  not  sound.  In  the  first  place,  the  female  and  her 
seducer  do  not  stand  upon  equal  grounds.  She  is  the,  weaker 
party  and  the  victim  of  his  acts,  and  the  seduction  has  been 
practiced  upon  her  under  the  false  color  of  a  promise  of 
marriage,  which  he  never  intended  to  perform.  They  are 
not  equally  guilty.  .  .  .  And  the  objection  that  the 
parent,  or  he  who  stands  in  loco  parentis,  has  his  action  for 
the  seduction,  is  equally  untenable.  The  loss  of  service  is 
the  gist  of  the  action,  when  brought  by  the  parent.     It  is 


108  Injuries  in  Family  Relations. 

true  that  tlie  loss  of  service  may  be  well  said  to  be  almost  a 
fiction  in  this  action,  when  it  is  made  the  foundation  of  dam- 
ages; for  the  real  substance  of  the  action  is  the  debauching 
the  child  and  depriving  the  parent  of  her  society,  and  the 
consequent  dishonor  and  distress  which  it  brings  to  the 
parent  and  family.  The  child's  loss  of  character,  and  dis- 
honor and  anguish,  and  distress  of  mind,  do  not  constitute 
the  basis  of  the  parent's  claim  for  damages. 

"  The  action  for  breach  of  marriage  promise  is  given  to 
afford  an  indemnity  to  the  misused  party  for  the  temporal 
loss  which  the  party  has  sustained  in  not  having  the  contract 
fulfilled;  and  this  has  always  been  held  to  embrace  the  injury 
to  the  feelings  and  afi^ections,  wounded  pride,  and  the  loss 
of  marriage.  ISTow  it  seems  to  me  that  all  of  these  things 
are  greatly  aggravated,  where  seduction  has  been  accom- 
plished under  the  false  color  of  a  marriage  promise,  and  that 
here  is  a  proper  field  of  damages  in  this  action,  which  is  un- 
touched by  the  parent's  action  for  seduction.  ...  It 
seems  to  me  that  here  is  a  broad  field  for  assessing  damages, 
which  the  parent's  action  for  seduction  does  not  reach,  and 
which  the  law  will  allow  the  jury  to  occupy  in  assessing  dam- 
ages Avhere  the  seduction  has  been  accomplished  through  a 
fraudulent  promise  of  marriage." 

Criminal  conversation. — A  husband  has  a  right  of  action 
against  one  who  commits  adultery  with  his  wife.  This  action 
is  maintainable  on  the  theory  of  loss  of  consortium,  not  of 
services.  Loss  of  services,  however,  may  be  proved  in  aggra- 
vation of  damages.  In  such  case,  condonation  does  not 
excuse  the  wrong  committed  by  the  seducer. 

The  wife  may  also  maintain  an  action  against  one  who 
wrongfully  entices  away  her  husband,  and  alienates  his  affec- 
tions. She  had  the  right  at  common  law,  but,  owing  to  dis- 
ability caused  by  coverture,  could  not  enforce  her  right  unless 
her  husband  joined  in  the  suit,  which  he  w\as  not  likely  to 
do,  as  by  such  act  he  would  confess  his  o^vn  wrong. 

"  It  is  well  settled  that  a  husband  can  maintain  an  action 
against  a  third  person  for  enticing  away  his  wife  and  de- 


Libel  and  Standee.  109 

priving  him  of  her  comfort,  aid  and  society.  (Ilutcheson  v. 
Peck,  5  Johns.  196;  Barnes  v.  Allen,  1  Abb.  Ct.  Ap.  Dec. 
111.)  The  basis  of  the  action  is  the  loss  of  consortium,  or 
the  right  of  the  husband  to  the  conjugal  society  of  his  wife.  It 
is  not  necessary  that  there  should  be  proof  of  any  pecuniary 
loss  in  order  to  sustain  the  action.  (Hermance  v.  James,  32 
How.  142 ;  Rinehart  v.  Bills,  82  Mo.  534.)  Loss  of  services 
is  not  essential,  but  is  merely  matter  of  aggravation,  and  need 
not  be  alleged  or  proved.  (Bigaouette  v.  Paulet,  134  Mass. 
125.) 

"  According  to  the  following  cases  a  wife  can  maintain  an 
action  in  her  own  name  and  for  her  o^vn  benefit  against  one 
who  entices  her  husband  from  her,  alienates  his  affection  and 
deprives  her  of  his  society :  Jaynes  v.  Jaynes,  39  Hun,  40 ; 
Breiman  v.  Paascli,  7  Abb.  IM".  C.  249 ;  Baker  v.  Baker,  16 
id.  293;  ^Yarner  v.  Miller,  17  id.  221;  Churchill  v.  Lewis, 
id.  226;  Simmons  v.  Simmons,  21  id.  469. 

"  The  absence  of  strictly  conmion-law  precedents  is  not 
surprising,  because  the  wife  could  not  bring  an  action  alone, 
owing  to  the  disability  caused  by  coverture,  and  the  husband 
would  not  be  apt  to  sue,  as  by  that  act  he  would  confess  that 
he  had  done  wrong  in  leaving  his  wife. 

"  If,  however,  the  right  was  hers  but,  owing  to  the  legal 
fiction  of  the  unity  of  husband  and  wife,  she  could  not  assert 
it,  she  may  now  have  a  remedy  under  section  450  of  the 
Code."    Bennett  v.  Bennett,  116  K  Y.  584,  587,  590,  591. 


LIBEL  AA^D  SLAXDEE 
Right  to  reputation. —  "  Eeputation  and  honor  are  no  lesa 
precious  to  good  men  than  bodily  safety  and  freedom.  In 
some  cases  they  may  be  dearer  than  life  itself.  Thus  it  is 
needful  for  the  peace  and  well-being  of  a  civilized  common- 
wealth that  the  law  should  protect  the  reputation  as  well  as 
the  person  of  the  citizen."     Pollock  on  Torts  (7th  ed.),  233. 


110  Libel  and  Slander. 

Violation  of  the  right. —  In  defamation,  the  wrongful  act 
is  the  violation  of  the  right  which  an  individual  has  to  re])u- 
tation,  and  may  be  effected  by  speech,  by  writing,  or  their 
equivalents. 

Slander  and  libel  defined. —  When  defamation  is  accom- 
plished by  speech  or  its  equivalent,  we  call  it  slander;  when 
it  is  accomplished  by  writing  or  its  equivalent,  we  call  it 
libel.  The  former  is  a  civil  wrong  only ;  the  latter  is  a  crim- 
inal, as  well  as  a  civil,  wrong. 

Statutory  definition  of  libel. —  "  A  malicious  publication, 
by  writing,  printing,  picture,  effigy,  sign  or  otherwise  than 
by  mere  speech,  which  exposes  any  living  person,  or  the 
memory  of  any  person  deceased  to  hatred,  contempt,  ridicule 
or  obloquy,  or  which  causes,  or  tends  to  cause  any  person  to 
be  shunned  or  avoided,  or  which  has  a  tendency  to  injure 
any  person,  corporation  or  association  of  persons,  in  his  or 
their  business  or  occupation,  is  a  libel."  N.  Y.  Penal  Code, 
§  242. 

No  civil  action  for  maligning  the  memory  of  the  dead. — 

"  The  only  redress  for  slander  is  a  civil  action.  A  libel,  how- 
ever, both  at  common  law  and  under  our  statute,  is  a  crime, 
and  for  it  the  offender  may  be  prosecuted  civilly  or  crim- 
inally. Also,  both  at  conmion  law  and  by  the  Penal  Code 
(§  242)  a  libel  upon  the  memory  of  the  dead  is  punishable 
as  a  crime.  .  .  .  The  objection  that  there  could  not  be 
a  proper  plaintiff  in  a  civil  action  for  a  libel  on  a  deceased 
person  would  seem  equally  applicable  to  an  action  for 
slander.  We  are,  therefore,  of  the  opinion  that  such  an 
action  will  not  lie."  Sorensen  v.  Balahan,  11  App.  Div.  164, 
167. 

Essential  elements  in  defamation. —  In  general,  we  may 
say  that  the  essential  elements  in  the  wrong  to  reputation 
are: 


Libel  and  Slandek.  Ill 

1.  Defamation,  i.  e.,  oral  or  written  language  which  tends 
to  bring  one  into  hatred,  disgrace,  or  ridicule,  or  to  injure 
him  in  his  vocation. 

2.  Publication,  i.  e.,  making  the  defamatory  matter  known 
to  a  third  person. 

"  An  action  to  recover  damages  for  libel  cannot  be  main- 
tained upon  proof  simply  that  the  libelous  words  were  com- 
posed and  were  in  existence  as  written  or  printed  matter, 
without  being  knowTi  to  any  one  except  the  author  and  the 
victim.  Unless  communicated  to  some  third  person  no  dam- 
age, either  actual  or  presumed,  can  result.  As  said  by  a 
learned  author,  '  until  the  publication,  the  act  is  not  com- 
plete in  its  mischief;  before  it  is  dispersed  abroad  it  can 
produce  no  present  or  actual  injury,  either  to  the  public  or 
the  individual,  and,  until  then,  there  is  a  locus  penitential 
on  the  part  of  those  concerned  in  the  composing  and  waiting.' 
(Holt's  Law  of  Libel,  281.)"  Youmans  v.  Smith,  153  K  Y. 
214,  218. 

3.  Damage,  which  must  be  alleged  and  proved  in  such 
cases  as  are  not  actionable  per  se. 

The  law  distinguishes  between  libel  and  slander. — "  A 

distinction  has  long  been  known  and  recognized  between 
verbal  and  written  slander.  Words,  wdien  committed  to  writ- 
ing and  published,  are  considered  as  libelous,  which  if  only 
spoken,  would  not  subject  the  person  speaking  to  any  action. 
Perhaps  it  is  to  be  regretted  that  a  distinction  was  ever  made 
between  oral  and  written  slander ;  and  if  it  was  a  new  ques- 
tion, no  distinction  would  now  be  made.  The  reasons  which 
have  been  given  for  the  distinction,  have  been  questioned 
both  by  writers  and  judges  of  eminence.  It  has  been  made, 
however,  and  has  become  a  part  of  the  law,  and  as  such  we 
must  receive  it.  There  can  be  no  question,  but  that  a  slander 
written  and  published,  evinces  a  more  deliberate  intention 
to  injure,  is  calculated  more  extensively  to  circulate  the  ac- 
cusation, and  to  provoke  the  person  accused,  to  take  the  mean.s 
of  redress  into  his  own  liands,  and  thus  to  commit  a  breach 


112  Libel  and  Slaxdek. 

of  the  peace,  than  mere  oral  slander  which  is  spoken  and 
soon  forgotten."     Colhy  v.  Reynolds,  G  Vt.  489,  493. 

Reputation  in  criminal  and  in  civil  actions. — ''  A  criminal 
libel  is  prosecuted  in  the  name  of  the  People,  not  for  the 
purpose  of  redressing  an  injury  done  to  an  individual,  but 
is  so  prosecuted  and  punished  as  a  crime  for  the  reason  tHat 
it  tends  to  provoke  animosity  and  violence  and  to  disturb 
the  public  peace  and  repose ;  and  certainly  it  will  not  be  for 
a  moment  contended  that  the  threatened  danger  to  the  public 
peace  is  not  as  great  when  the  person  libelled  is  a  bad  man, 
as  when  he  is  a  good  man.  In  a  civil  action  brought  by  an 
individual  to  obtain  satisfaction  for  an  injury  to  his  reputa- 
tion, caused  by  the  publication  of  a  libel,  the  bad  reputation 
of  the  complainant  becomes  material  as  affecting  the  measure 
of  damages,  while  in  a  criminal  action  brought  in  the  name 
of  the  People,  the  individual  libelled,  so  far  as  personal 
redress  and  satisfaction  are  concerned,  is  not  considered," 
People  V.  Stokes,  30  Abb.  X.  C.  200,  210. 

When  evidence  of  good  reputation  is  admitted  in  civil 
actions. —  In  Stafford  v.  Morning  Journal  Association,  142 
jS[.  y.  598,  the  complaint  alleged  good  character  and  repute, 
and  the  answer,  no  knowledge  or  information  suificient  to 
form  a  belief  thereon.  As  to  the  propriety  of  the  plaintiff 
introducing  evidence  of  her  good  reputation,  the  court,  at 
p.  600,  said :  ''  The  general  rule  as  to  the  impropriety  of 
permitting  a  party  to  give  evidence  of  his  good  reputation, 
in  actions  for  the  recovery  of  damages  for  libel  or  slander, 
has  reference  to  cases  where  reputation  is  not  a  material 
issue,  or  where  it  has  not  been  attacked.  The  reason  for  it 
is  in  the  absence  of  any  usefulness  in  proving  that  which  the 
law  already  assumes  and  because  the  character  of  the  com- 
plainant does  not  form  the  basis  for  the  recovery  of  general 
damages.  But  this  case  differs  from  those  relied  upon  by 
the  appellant  in  certain  aspects.  In  the  first  place,  the  plain- 
tiff's allegation  was  put  in  issue  by  the  answer.     It  is  true 


Libel  and  Slandee,  113 

that  it  was  unneeessary  for  the  plaintiff  to  allege  as  she  did, 
A^ith  respect  to  her  reputation ;  but  having  done  so,  the 
defendant,  in  choosing  to  make  an  issue  upon  it  in  its  answer, 
opened  the  door  for  the  offer  of  evidence.  In  the  next  place, 
when  the  question  of  materiality  was  raised,  it  was  then  open 
to  the  defendant  to  disclaim  any  purpose  of  questioning  the 
jDlaintiff's  reputation.  But  it  did  not  do  so.  The  objection 
that  '  it  was  not  one  of  the  issues  under  the  pleadings/  of 
course,  was  not  true ;  while,  if  the  proof  was  immaterial,  then 
no  harm  can  be  said  to  result  from  giving  it  and  in  estab- 
lishing that  which  the  law  presumed.  The  very  effect  before 
the  jury  of  failing  to  disclaim  any  purpose  of  questioning 
the  plaintiff's  character,  when  the  question  was  raised  upon 
the  issue  and  when  endeavoring  to  prevent  any  proof  as  to 
what  it  was,  must  have  been  bad  and,  as  I  think,  warranted 
the  trial  judge,  under  the  circumstances,  in  permitting  evi- 
dence to  be  given.  I  do  not  think  the  plaintiff  was  absolutely 
bound,  in  the  face  of  an  issue  tendered  by  the  defendant  as 
to  her  reputation  for  chastity  and  virtue,  to  sit  quiet  and  to 
rest  upon  the  legal  presumption.  The  evidence  bore  upon  an 
issue  in  the  case,  which  the  defendant  could  have  avoided, 
and  the  plaintiff,  in  anticipating  any  possible  attack  and  in 
insisting  upon  the  admission  of  the  evidence  in  question,  in 
the  absence  of  any  disclaimer  on  the  part  of  the  defendant, 
should  not  be  made  to  suffer  from  the  ruling  in  question. 
She  very  properly  offered  it  as  a  part  of  her  case  (Young  v. 
Johnson,  123  jST.  Y.  226)  and  the  trial  judge  committed  no 
error  in  permitting  proof  of  what  the  law  assumed." 

When  evidence  of  bad  reputation  is  admitted  in  civil 
actions. — 'In  Blanchard  v.  Tulip,  32  Hun,  638,  an  action 
for  slander,  the  answer  contained  a  denial  and  an  allegation 
of  truth.  At  the  trial  the  defendant  asked  a  witness,  *'*  Do 
you  know  the  general  reputation  of  the  plaintiff  as  to  chastity 
in  the  community  previous  to  1882  ?  "  This  was  excluded 
because  not  pleaded.  On  appeal  the  court  at  General  Term 
said :   "  In  the  present  case  the  evidence,  if  material,  ■'vould 


114  Libel  and  Slander. 

be  material  only  as  it  tended  partly  to  excuse  the  defendant 
for  uttering  the  slander,  and  thus  to  mitigate  the  damage? 
which  might  otherwise  have  been  given  to  punish  him  for 
his  false  statement.  Therefore  the  facts  should  have  been 
pleaded.     {Willover  v.  Hill  72  N.  Y.  36;  Code,  §  536.)" 

Language  actionable,  and  not  actionable,  per  se. — "  The 
cases  of  actionable  slander  were  defined  by  Chief  Justice 
De  Grey,  in  the  leading  case  of  Onslow  v.  Home  (3  Wilson, 
177),  and  the  classification  made  in  that  case  has  been  gen- 
erally followed  in  England  and  this  country.  According  to 
this  classification,  slanderous  words  are  those  which  (1) 
import  a  charge  of  some  punishable  crime;  or  (2)  impute 
some  offensive  disease  which  would  tend  to  deprive  a  person 
of  society;  or  (3)  which  tend  to  injure  a  party  in  his  trade, 
occupation,  or  business;  or  (4)  which  have  produced  some 
special  damage. 

"...  Written  words  are  libellous  in  all  cases  where, 
if  spoken,  they  would  be  actionable,  but  they  may  be  libellous 
where  they  would  not  support  an  action  for  oral  slander.'^ 
Moore  v.  Francis,  121  N.  Y.  199,  203-204. 

"  A  written  or  printed  statement  or  article  published  of 
or  concerning  another  whicli  is  false  and  tends  to  injure  his 
reputation  and  thereby  expose  him  to  public  hatred,  contempt, 
scorn,  obloquy  or  shame,  is  libelous  per  se."  Triggs  v.  Sun 
Printing  d-  Pub.  Assn..,  179  K  Y.  144,  153. 

"  Certain  w^ords,  all  admit,  are  in  themselves  actionable, 
because  the  natural  consequence  of  what  they  impute  to  the 
party  is  damage,  as  if  they  import  a  charge  that  the  party 
has  been  guilty  of  a  criminal  offence  involving  moral  turpi- 
tude, or  that  the  party  is  infected  with  a  contagious  dis- 
temper, or  if  they  are  prejudicial  in  a  pecuniary  sense  to  a 
person  in  office  or  to  a  person  engaged  as  a  livelihood  in  a 
profession  or  trade ;  but  in  all  other  cases  the  party  who 
brings  an  action  for  words  must  show  the  damage  he  or  she 
has  suffered  by  the  false  speaking  of  the  other  party." 
Pollard  V.  Lyon,  91  U.  S.  225,  227. 


Libel  and  Slander.  115 

Some  instances  of  special  damage. —  In  those  cases  where 
special  damage  must  be  alleged  and  proved  in  order  to  entitle 
the  plaintiff  to  recover,  the  law  requires  proof  of  some 
definite,  temporal  loss,  or  the  loss  of  some  material  advantage. 

'"  As  to  what  constitutes  special  damages,  Starkie  men- 
tions the  loss  of  a  marriage,  loss  of  hospitable  gratuitous 
entertainment,  preventing  a  servant  or  bailiff  from  getting  a 
place,  the  loss  of  customers  by  a  tradesman ;  and  says  that  in 
general  whenever  a  person  is  prevented  by  the  slander  from 
receiving  that  which  would  otherwise  be  conferred  upon  him, 
though  gratuitously,  it  is  sufficient.  1  Stark,  on  Sland.  195, 
202 ;  Cook's  Law  of  Def.,  22-24.  In  Olmsted  v.  Miller,  1 
Wend.  506,  it  was  held  that  the  refusal  of  civil  entertain- 
ment at  a  public  house  was  sufficient  special  damage.  So  in 
^Villiams  v.  Hill,  19  Wend.  305,  was  the  fact  that  the  plain- 
tiff was  turned  away  from  the  house  of  her  uncle  and  charged 
not  to  return  until  she  had  cleared  up  her  character.  So  in 
Beach  v.  Ranney,  2  Hill,  309,  was  the  circumstance  that 
persons,  who  had  been  in  the  habit  of  doing  so,  refused 
longer  to  provide  fuel,  clothing,  etc.  2  Stark,  on  Ev.  872, 
873.  These  instances  are  sufficient  to  illustrate  the  kind  of 
special  damage  that  must  result  from  defamatory  words  not 
otherwise  actionable  to  make  them  so."  Terwilliger  v. 
Wayids,  17  ^t.  Y.  51,  60. 

Special  damage  in  cases  actionable  per  se. — "  "^Aliere  spe-  ^^-  »■ 
cial  damage  is  not  essential  to  the  action,  it  may  still  of  ^*i^  * 
course  be  proved  at  the  trial  to  aggravate  the  damages,  if  it  ^ .  ^>  ""^^ 
has  been  properly  pleaded.     The  same  particularity  is  re-  ^t*^4-r^ 
quired  whether  the  words  be  actionable  per  se  or  not.     So, 
too,  the  plaintiff  must  still  prove  that  the  special  damage '^^^• 
alleged  is  the  direct  result  of  the  defendant's  words,  and  not  «< 
of  any  repetition  of  them  by  others.   ( Tunnicliffe  v.  Moss,  ^^ 
3  C.  &  K  83;  Hirst  v.  Goodwin,  3  F.  &  F.  257.)     But  in 
other  respects  the  law  is  not  quite  so  strict  as  to  what  con- 
stitutes special  damage  in  the  first  case  as  in  the  second.'* 
Odgers  on  Libel  and  Slander  (3d  ed.),  352. 


IIG  Libel  and  Slaxdee. 

Imputation  of  unchastity  actionable  per  se  by  statute. — 

Lrapiitiiig  nuchastity  to  a  wouian  was  uot  actionable  at  com- 
mon law,  unless  special  damage  was  alleged  and  proved;  but 
to-day,  in  the  state  of  Xew  York,  "  In  an  action  of  slander, 
brought  by  a  woman,  for  words  imputing  uucliastity  to  lier, 
it  is  not  necessary  to  allege  or  prov^e  special  damages,"  Code 
Civ.  Pro.,  §  1906. 

Liability  for  publication  in  libel  and  in  slander. — "  The 
actual  publisher  of  a  libel  may  be  an  innocent  porter  or 
messenger  —  a  mere  hand,  unconscious  of  the  nature  of  his 
act,  and  for  which,  therefore^  his  employers  shall  be  held 
liable,  and  not  he.  Whereas  in  every  case  of  the  republica- 
tion of  a  slander  the  publisher  acts  consciously  and  volun- 
tarily; the  repetition  is  his  own  act.  Therefore,  if  a  person 
is  in  any  way  concerned  in  the  making  or  publishing  of  a 
libel,  he  is  liable  for  all  the  damage  that  ensues  from  its 
publication.  But  if  one  person  slander  anotlier  he  is  only 
liable  for  such  damages  as  result  directly  from  that  one 
utterance  of  his  own  lijDS."  Newell  on  Slander  and  Libel, 
356. 

Repetition  of  defamation. —  "Where  words  are  spoken  to 
one  person  and  he  repeats  them  to  another,  in  consequence 
of  which  the  party  of  whom  they  are  spoken  sustains  dam- 
ages, the  repetition  is^  as  a  general  rule,  a  wrongful  act, 
rendering  the  person  repeating  them  liable  in  like  manner 
as  if  he  alone  had  uttered  them."  Terwilliger  v.  Wands,  17 
K  Y.  54,  57. 

"  It  is  too  w^ell  settled  to  be  now  questioned  that  one  w^ho 
utters  a  slander,  or  prints  and  publishes  a  libel,  is  not  re-. 
sponsible  for  its  voluntary  and  unjustifiable  repetition,  with- 
out his  authority  or  request,  by  others  over  whom  he  has  no 
control  and  who  thereby  make  themselves  liable  to  the  person 
injured,  and  that  such  repetition  cannot  be  considered  in 
law  a  necessary,  natural  and  probable  consequence  of  the 
original   slander   or  libel.     (Newell  on   Defamation,    245; 


Libel  and  Slanber.  117 

Moak's  Underbill  on  Torts,  145;  M'Gregor  v.  Tliwaites,  3 
B.  &  C.  35.)  The  remedy  in  such  a  case  wonld  be  against 
the  party  who  printed  and  published  the  words  thus  spoken, 
and  not  against  the  one  speaking  them,  as  a  person  is  not 
liable  for  the  independent  illegal  acts  of  third  persons  in 
publishing  matters  which  may  have  been  uttered  by  him, 
imless  they  are  procured  by  him  to  be  published,  or  he  per- 
formed some  act  which  induced  their  publication,  (Ward 
V.  Weeks,  7  Bing.  211;  Olmsted  v.  Brown,  12  Barb.  657.) 
The  repetition  of  defamatory  language  by  another  than  the 
first  publisher  is  not  a  natural  consequence  of  the  first  pub- 
lication, and,  therefore,  the  loss  resulting  from  such  repeti- 
tion is  not  generally  attributable  to  the  first  publisher.  This 
rule  is  based  upon  the  principle  that  every  person  who 
repeats  a  slander  is  responsible  for  the  damage  caused  by 
such  repetition,  and  that  such  damage  is  not  the  proximate 
and  natural  consequence  of  the  first  publication  of  the 
slander."    Schoepftin  v.  Cojfeij,  162  X.  Y.  12,  17. 

Repeating  defamation  with  the  name  of  the  author. — 

"  In  the  case  of  Davis  v.  Lewis,  7  Term  Rep.  17,  Lord  Ken- 
yon  observed,  that  if  a  person  say  that  such  particular  man 
(naming  him)  told  him  certain  slander,  and  that  man  did 
in  fact  tell  him  so,  it  is  a  good  defense  to  an  action  of  slan- 
der. There  was  a  similar  dictum  of  the  judges,  in  the  Earl 
of  Northampton's  .case,  12  Co.  132,  but  in  neither  of  these 
cases  was  this  the  point  in  judgment;  and  it  may  well  be 
questioned,  whether  even  this  rule  as  to  slanderous  words 
ought  not  to  depend  upon  the  quo  animo  with  which  the 
words  with  the  name  of  the  author  are  repeated.  Words  of 
slander  with  the  name  of  the  author  may  be  repeated  with 
a  malicious  intent,  and  with  mischievous  effect.  The  public 
may  be  ignorant  of  the  worthlessness  of  the  original  author, 
and  may  be  led  to  attach  credit  to  his  name  and  slander, 
when  both  are  mentioned  by  a  person  of  undoubted  reputa- 
tion. There  is,  however,  a  distinction  between  oral  and 
written  or  printed  slander,  which  is  noticed  in  all  the  books; 


118  Libel  and  SLA^^DEB. 

and  the  latter  is  deemed  mncli  more  pernicious,  and  will  not 
so  easily  admit  of  justification.  There  is  no  precedent  of 
such  a  justification  in  an  action  for  a  libel."  Dole  v.  Lyon, 
10  Johns.  Kep.  447,  449. 

In  Mapes  v.  TFeel'S,  4  Wend.  G59,  G62,  the  court  said: 
"  The  defendant  had  openly  and  publicly  said  that  the  plain- 
tiff had  stolen  a  sheep  and  he  could  prove  it  by  a  certain 
boy.  When  he  is  sued  for  the  slander,  instead  of  producing 
the  boy  or  any  body  else  to  prove  the  charge,  he  wishes  to 
excuse  himself  by  proving  that  the  boy  told  him  so.  The 
judge  properly  excluded  the  testimony,  and  was  perfectly 
justified  in  the  remark  that  the  defendant  had  endorsed  the 
slander  of  Archer  by  making  the  positive  charge,  and  assert- 
ing his  ability  to  make  proof  of  its  truth." 

From  the  above  we  may  conclude,  and  properly,  that  the 
repetition  of  slander  or  libel  is  not  justified  by  giving  the 
name  of  the  author,  though,  under  §  535  of  the  Code  of 
Civil  Procedure,  it  might  be  offered  in  mitigation  of 
damages. 

Must  defamation  be  malicious? — "It  is  commonly  said 
that  defamation  to  be  actionable  must*  be  malicious,  and  the 
old  form  of  pleading  added  '  maliciously  '  to  '  falsely,'  though 
this  was  held  to  be  needless  before  the  end  of  the  sixteenth 
century.  Whatever  may  have  been  the  origin  or  the  original 
meaning  of  this  language,  malice  in  the  modern  law  signifies 
neither  more  nor  less,  in  this  connexion,  than  the  absence  of 
just  cause  or  excuse;  and  to  say  that  the  law  implies  malice 
from  the  publication  of  matter  calculated  to  convey  an  action- 
able imputation  is  only  to  say  in  an  artificial  form  that  the 
person  who  so  publishes  is  responsible  for  the  natural  con- 
sequences of  this  act."     Pollock  on  Torts  (7th  ed.),  244. 

Language  of  the  publication. —  The  language,  alleged  to  be 
libellous,  is  to  be  given  its  ordinary  import  and  meaning, 
unless  an  explanation  accompanies  the  use  of  the  words, 
which  gives  them  a  different  meaning.       That  the  alleged 


Libel  and  Slandek,  119 

libellous  language  is  capable  of  the  meaning  ascribed  to  it, 
is  a  question  of  law  for  the  court;  if  it  is  also  capable  of 
another  meaning,  the  jury  must  decide  which  meaning  was 
conveyed  under  the  circumstances. 

"  Both  cases  [referring  to  Cooper  v.  Greeley,  1  Denio, 
858,  and  Stone  v.  Cooper,  2  Denio,  293]  were  decided  upon 
the  princij)le  that  the  language  is  to  be  construed  fairly  and 
naturally.  It  is  not  enough  that  a  critic  or  a  malignant  may 
torture  the  expressions  into  a  charge  of  a  criminal  or  dis- 
graceful act.  N^or  is  it  enough,  on  the  other  hand,  that  a 
possible  and  far-fetched  construction  may  find  an  inoffensive 
meaning  in  the  language.  The  test  is  whether,  to  the  mind 
of  an  intelligent  man,  the  tenor  of  the  article  and  the  lan- 
guage used  naturally  import  a  criminal  or  disgraceful 
charge."  More  v.  Bennett,  48  N.  Y.  472,  476.  See  also 
Hayes  v.  Ball,  72  N.  Y.  418,  420,  followed  in  Warner  v. 
Southall,  165  K  Y.  496,  498. 

Intent  of  speaker. — "  When  a  defendant  has  made  a 
charge,  that  clearly  imputes  a  crime,  he  cannot,  afterwards, 
be  permitted  to  say,  I  did  not  intend  what  my  words  legally 
imply.  The  intent  must  be  collected  from  the  expressions 
used,  when  they  have  a  certain  and  definite  meaning.  The 
jury  cannot  rightfully  indulge  in  conjectures  that  are  not 
warranted  by  the  legal  import  of  the  words  spoken.  But  if 
it  is  doubtful  whether  the  words  impute  a  crime,  or  may  be 
satisfied  by  ascribing  to  them  a  meaning  which  renders  them 
not  actionable,  then  the  intent  may  become  a  fair  subject  of 
inquiry  before  a  jury."  M'Kinly  v.  Boh,  20  Johns.  Rep. 
351,  356. 

Innuendo. —  "  An  averment  by  the  plaintiff  that  words  not 
libellous  in  their  ordinary  meaning  or  without  a  special  appli- 
cation were  used  with  a  specified  libellous  meaning  or  appli- 
cation is  called  an  innuendo,  from  the  old  form  of  pleading." 
Pollock  on  Torts  (7th  ed.),  248. 

The  purpose  of  an  innuendo  is  to  explain,  by  attaching  to 
doubtful  words  and  phrases  their  true  meaning.    "  It  is,  how- 


120  Libel  and  Slandek. 

ever,  well  settled  that  an  innuendo  cannot  extend  the  sense 
of  the  words  used  beyond  their  natural  meaning,  unless  some- 
thing is  put  upon  the  record  by  way  of  introducing  matter, 
with  which  they  can  be  connected ;  in  which  case,  words  which 
are  equivocal,  or  ambiguous,  or  fall  short  in  their  natural 
sense  of  stating  a  slanderous  charge,  may  have  fixed  to  them 
a  meaning  extending  beyond  their  ordinary  import,  which 
renders  them  certain  or  defamatory  by  means  of  a  proper 
innuendo."    Vickers  v.  Stoneman,  73  Mich.  419,  421. 

Averment,  colloquium  and  innuendo. —  "The  use  in  plead- 
*)  ioxXo"  ing  of  &n  avernient^  is  to  ascertain  that  to  the  court,  which 
'  is  generally  or  doubtfully  expressed ;    so  that  the  court  may 

not  be  perplexed  of  whom,  or  of  what,  it  ought  to  be  under- 
stood ;   and  to  add  matter  to  the  plea  to  make  doubtful  things 
clear.     (System  of  Pleading,  121.)     A  coUoQuium  serves  to 
^^•^  show  that  the  words  were  spoken  in  reference  to  the  matter 

y-*-**^        of  the  averment.    An  i.n.nup.ndo  is  explanatory  of  the  subject- 
,.vl^  matter  sufficiently  expressed  before;    and  it  is  explanatory 
of  such  matter  only;    for  it  cannot  extend  the  sense  of  the 
words  beyond  their  owti  meaning,  unless  something  is  put 
upon  the  record  for  it  to  explain.     This  may  be  illustrated  by 
Barham's  case.       (4  Coke's  Rep.  20.)      Barhani  brought  an 
action  for  the  defendant's  saying  of  him,   '  Barham  burnt 
my  barn,'  (innuendo)  '  a  barn  with  corn.'     The  action  was 
held  not  to  lie ;    because  burning  a  barn,  unless  it  had  corn 
in  it,  was  not  felony.     '  But  if,  in  the  introduction,  it  had 
^  jU-v-        been  averred  that  the  defendant  had  a  barn  full  of  corn,  and 
cu^^ji^  that,  in  a  discourse  about  that  barn,  the  defendant  had  spoken 
4   ^^      the  words  charged  in  the  declaration,  an  innuendo  of  its  being 
't"^*''*'''^'    the  barn  full  of  com  would  have  been  good ;  for  by  coupling 
the  innuendo  in  the  libel,  with  the  introductory  averment,  it 
would  have  been  complete.'     (De  Grey,  Ch.  J.,  in  Rex  v. 
Home,  Cowp.  184.)     Here  the  extrinsic  fact  that  the  defend- 
ant had  a  barn  full  of  corn,  is  the  averment.    The  allegation 
that  the  words  were  uttered  in  a  conversation  in  reference  to 
that  bam,  is  the  colloquium;    and  the  explanation  given  to 


Libel  and  Standee.  121 

the  words  thus  spoken,  is  the  innuendo/'     Van  Vechten  v. 
Hopkins,  5  Johns.  Rep.  211,  220. 

Comment  and  criticism.—  "  Nothing  is  a  libel  which  is  a 
fair  comment  on  a  subject  fairly  open  to  public  discussion. 
This  is  a  rule  of  common  right,  not  of  allowance  to  persons 
in  any  particular  situation,  and  it  is  not  correct  to  speak  of 
utterances  protected  by  it  as  being  privileged.  .  .  .  There 
is  not  a  cause  of  action  with  an  excuse,  but  no  cause  of  action 
at  all.  '  The  question  is  not  whether  the  article  is  privileged, 
but  Avhether  it  is  a  libel.'  "    Pollock  on  Torts  (7th  ed.),  251. 

Comment  and  report  distinguished. — "Comment  and  criti- 
cism on  matters  of  public  interest  stand  .  .  .  on  a  dif- 
ferent footing  from  reports  of  judicial  or  parliamentary  pro- 
ceedings. Such  reports  are  privileged  so  long  as  they  are 
fair  and  accurate  reports  and  nothing  more.  But  to  any 
attempt  at  comment,  no  privilege  attaches.  In  short,  report 
and  comment'  are  two  distinct  and  separate  things.  A  report 
is  the  mechanical  reproduction,  more  or  less  condensed  or 
abridged,  of  what  actually  took  place ;  comment  is  the  judg- 
ment passed  on  the  circumstances  reported,  by  one  who  has 
applied  his  mind  to  them.  Fair  reports  are  privileged,  while 
fair  comments,  if  on  matters  of  public  interest,  are  no  libels 
at  all."    Odgers  on  Libel  and  Slander  (3d  ed.),  34, 

Liberty  of  the  press. —  Freedom  of  speech  and  liberty  of 
the  press  are  guaranteed  by  the  constitution.  "  Congress  shall 
make  no  law  .  .  .  abridging  the  freedom  of  speech,  or 
of  the  press."    IT.  S.  Const.,  Amend't  I. 

"  The  liberty  of  the  press  guaranteed  by  the  Constitution 
is  a  right  belonging  to  every  one,  whether  proprietor  of  a 
newspaj3€r  or  not,  to  publish  whatever  he  pleases,  without  the 
license,  interference  or  control  of  the  government,  being 
responsible  alone  for  the  abuse  of  the  privilege.  It  is  a  right 
which,  from  the  introduction  of  the  printing  press  down  to 
the  year  1694,  did  not  in  England  belong  to  the  subject     On 


122  Libel  and  Slandek. 

the  contrary,  no  one  was  allowed  to  publish  any  printed  mat- 
ter without  the  license  and  supervision  of  the  government, 
and  it  was  against  such  interference  on  the  part  of  the  gov- 
ernment, and  in  favor  of  the  right  of  the  citizen,  that  this 
provision  found  its  way  into  our  Bill  of  Rights."  Negley  v. 
Farroiv,  GO  Md.  158,  176. 

Truth  as  a  defense. —  In  civil  actions  to  recover  damages 
for  libel  or  slander,  if  the  defendant  alleges  and  proves  that 
the  defamatory  matter  was  true,  the  plaintiff's  cause  of  action 
fails,  because  "  the  law  will  not  permit  a  man  to  recover  dam- 
ages in  respect  of  an  injury  to  a  character  which  he  either 
does  not  or  ought  not  to  possess."  (Littledale,  J.,  10  B.  &  C. 
272.)  Under  such  circumstances  the  motive  of  publication 
is  immaterial. 

Criminal  actions. —  In  criminal  actions  for  libel,  "  the  pub- 
lication is  justified  when  the  matter  charged  as  libellous  is 
true,  and  was  published  with  good  motives  and  for  justifiable 
ends.  The  publication  is  excused  when  it  is  honestly  made, 
in  the  belief  of  its  truth  and  upon  reasonable  grounds  for 
this  belief,  and  consists  of  fair  comments  upon  the  conduct 
of  a  person  in  respect  of  public  affairs,  or  upon  a  thing  which 
the  proprietor  thereof  offers  or  explains  to  the  public." 
K  Y.  Penal  Code,  §  SI-l. 

"  Section  8  of  article  1  of  our  State  constitution  provides, 
that  '  In  all  criminal  prosecutions  or  indictments  for  libel  the 
truth  may  \'Q  given  in  evidence  to  the  jury ;  and  if  it  shall 
appear  to  the  jury  that  the  matter  charged  as  libellous  is  true, 
and  was  published  with  good  motives,  and  for  justifiable  ends, 
the  party  shall  be  acquitted.'  [See  to  same  effect  Art.  I., 
§  8  of  the  present  T^.  Y.  Const.] 

"  This  provision  it  will  be  observed  is  limited  by  its  ex- 
press terms  to  criminal  prosecutions  and  indictments.  The 
former  constitution  did  not,  in  this  connection,  contain  the 
word  '  criminal,'  and  it  was  thought  by  learned  and  able  jur- 
ists that  the  provision  of  that  constitution  was  applicable  to 


Libel  and  Slander.  123 

civil  actions  for  libel.  See  Dolloway  v.  Turrill,  26  Wend. 
383,  and  opinions  of  Senators  Root  and  Verplanck,  pages 
399-402.  All  doubt,  however,  vas  removed  bj  the  insertion 
of  the  word  '  criminal,'  as  it  now  appears  in  the  constitution 
of  1846."    Joannes  v.  Jennings,  6  T.  &  C,  138,  141. 

Civil  actions. —  "  In  civil  actions  where  the  truth  of  the 
alleged  libel  is  pleaded  in  justification,  it  may  be  proved  as 
a  complete  bar  to  the  suit ;  and  in  such  case  the  motives  with 
which  the  publication  was  made  are  not  material. 

"  This  was  so  laid  do\Mi  by  the  Supreme  Court  and  by  the 
Court  of  Errors  in  the  celebrated  case  of  Root  v.  King,  7 
Cow.  613;  S.  a,  4  Wend.  113.  The  rule  is  the  same  in 
slander;  and  as  it  was  tersely  stated  by  Bronson,  J.,  in 
Baian  v.  Clause,  5  Hill,  196:  'Our  laws  allow  a  man  to 
speak  the  truth  although  it  be  done  maliciously.'  "  Joannes 
V.  Jennings,  6  T.  &  C,  138,  141. 

Justification  must  be  as  broad  as  the  charge. —  "  Any   one  (r-t«'*'***-|i 

may  publish  the  truth  of  another,  however  much  it  may  affect  j..«oJMi*    ^ 
his  reputation ;   but  he  must  take  en  re  not  to  make  the  charge  j^^..,,.,.*-!** 
broader  than  he  can  jiistify."     Stilwell  v.  Barter,  19  Wend,  j,^,,^^ 
487,  490.    See,  also,  Root  v.  King,  7  Cow.  613,  634.   .    ^  -^^^^^  -^""^ 


Mitigating  circumstances. —  In  a  civil  action  to  recover 
damages  for  libel  or  slander,  "  the  defendant  may  prove  miti- 
gating circumstances,  notwithstanding  that  he  has  pleaded  or 
attempted  to  prove  a  justification."  N.  Y.  Code  Civ.  Pro., 
§  535. 

Where  the  defendant  "  has  pleaded  the  truth  of  his  charges 
in  justification  of  making  them,  and  also  matters  in  mitiga- 
tion, as  allowed  by  the  Code  to  do,  the  answer  of  justification, 
though  unsustained  by  proof,  can  no  longer  be  taken  as 
conclusive  evidence  of  malice  against  him,  and  as  aggravat- 
ing the  plaintiff's  damages.  For  the  principle  upon  which 
the  defendant  may  mitigate  the  damages,  or  in  other  words, 
lessen  the  amount,  which  shall  be  recovered  against  him,  for 


r^ 


124  Libel  and  Slandek. 

sm.  act  of  his  which  he  cannot  justify,  is  that  though  Avrong, 
he  was  mistakenly  and  tlius  perhaps  innocently,  wrong." 
Klinck  V.  Colby,  4Q  N.  Y.  427,  437. 

Mitigation    extends    only    to    punitive    damages. — "  The 

rule  in  this  class  of  actions  is  that  if  tlic  publication  is  not 
justified,  the  plaintiff  is  entitled  to  recover  his  actual  or 
compensatory  damages  in  any  event.  There  can  be  no  miti- 
gation of  this  kind  of  damages,  '^\^ii ga ti on  pxten ds  or  rel a tes 
oiily  to  xiuniti3:e_QiL£X£LULplaiyLdamag£S.''  Wiiensch  v.  Morn- 
ing Journal  Ass'n,  4  App.  Div.  110,  115,  and  followed  in 
Young  v.  Fox,  26  App.  Div.  261,  271. 

Privilege  as  a  defense. —  The  authorities,  both  in  England 
and  in  this  country,  recogTiize  two  classes  of  privileged  com- 
mMnications,  the  one  aibsolute,  and  the  othcT^  qualified.,  which, 
in  proper  case,  may  be  urged  by  the  defendant  to  relieve  him 
of  all  legal  liability  for  statements,  spoken  or  written,  defama- 
tory of  the  plaintiff.  This  is,  in  reality,  an  exception  to  the 
general  rule  of  the  common  law  that  a  man  shall  have  a  rem- 
edy for  every  injury,  and  is  allowed,  not  because  the  plain- 
tiff has  suffered  no  damage  to  his  reputation,  but  because 
public  policy  and  the  interests  of  society  require,  that  certain 
persons  upon  certain  occasions  shall  speak  freely  and  without 
fear  of  exposure  to  vexatious  actions. 

Qualified  privilege.  Malice  material. —  "  There  is  an  im- 
portant class  of  cases  in  which  a  middle 'course  is  taken  be- 
tween the  common  rule  of  unqualified  responsibility  for  one's 
statements,  and  the  exceptional  rules  which  give  .  .  . 
absolute  protection  to  the  kinds  of  statements  covered  by 
them.  In  many  relations  of  life  the  law  deems  it  politic  and 
necessary  to  protect  the  honest  expression  of  opinion  concern- 
ing the  character  and  merits  of  persons,  to  the  extent  appro- 
priate to  the  nature  of  the  occasion,  but  does  not  deem  it 
necessary  to  prevent  the  person  affected  from  showing,  if  he 
can,  that  an  unfavorable  opinion  expressed  ooneeming  him  is 


Libel  and  Slandek.  125 

not  honest  Occasions  of  this  kind  are  said  to  be  privileged, 
and  communications  made  in  pursuance  of  the  duty  or  right 
incident  to  them  are  said  to  be  privileged  by  the  occasion. 
The  term  *  qualified  privilege  '  is  often  used  to  mark  the 
requirement  of  good  faith  in  such  cases,  in  contrast  to  the 
cases  of  'absolute  privilege.'"  Pollock  on  Torts  (7th  ed.), 
259. 

"  In  one  [referring  to  the  qualified  class]  the  party  is  pro- 
tected from  civil  or  criminal  responsibility  for  his  statements, 
whether  spoken  or  written,  although  untrue,  unless  he  is 
proved  to  have  been  actuated  by  a  malicious  design  in  making 
them.  To  this  class  of  cases  belong  complaints  preferred  in 
tl!ii&  proper  quarter  against  public  officers ;  statements  in 
regard  to  the  character  of  a  sen^ant,  given  by  a  master  upon 
inquiry ;  confidential  communications  upon  matters  of  busi- 
ness, between  parties  having  a  mutual  interest;,  statements 
made  in  the  discharge  of  a  public  or  ofiicial  duty ;  and  other 
publications  of  a  similar  nature.  The  occasion  of  the  speech 
or  writing,  and  the  position  of  the  person  by  vchom  it  is 
uttered,  in  these  instances,  repel  the  presumption  or  infer- 
ence of  malice  which  the  law  justly  and  wisely  attaches  to  a 
false  and  injurious  accusation  where  it  is  gratuitously  made. 
But  the  party  injured  may  nevertheless  prove,  if  he  is  able 
to  do  so,  that  the  charge  which  has  been  published  even  upon 
such  an  occasion,  was  not  only  false  in  fact,,  but  malicious  in 
motive.  If  he  can  establish  express  malice  he  may  recover 
as  in  other  cases,  notwithstanding  the  conditional  privilege. '^ 
Perl-ins  v.  Mitchell,  31  Barb.  461,  467. 

Moral  duty  to  communicate. —  "  Judges  who  have  had, 
from  time  to  time,  to  deal  with  questions  as  to  whether  the 
occasion  justified  the  speaking  or  the  writing  of  defamatory 
matter,  have  all  felt  great  difficulty  in  defining  what  kind  of 
social  or  moral  duty,  or  what  amount  of  interest  will  afford 
a  justification."      Whiteley  v.  Adatns,  15  C.  B.  (^.  S.)  392. 

"  A  communication  made  bona  fide  upon  any  subject-mat- 
ter in  which  the  party  connnunicating  has  an  interest,,  or  iji 


126  Libel  and  Slander. 

reference  to  which  he  has  a  duty,  is  privileged  if  made  to  a 
person  having  a  corresponding  interest  or  duty,  although  it 
contained  criminating  matter  which,  without  this  privilege, 
would  be  slanderous  and  actionable;  and  this  though  the 
duty  be  not  a  legal  one,  but  only  a  moral  or  social  duty  of 
imperfect  obligation."  Harrison  v.  Bush,  5  Ellis  &  Black. 
(Q.  B.)  344. 

"  It  is  easy  enough  to  apply  the  rule  in  cases  where  both 
parties,  the  one  making  and  the  one  receiving  the  communi- 
cation, are  interested  in  it,  or  where  the  parties  are  related, 
or  where  it  is  made  upon  request  to  a  party  who  has  an  inter- 
est in  receiving  it,  or  where  the  party  making  it  has  an  inter- 
est to  subserve,  or  where  the  party  making  it  is  under  a  legal 
duty  to  make  it.  But  when  the  privilege  rests  simply  upon 
the  moral  duty  to  make  the  communication,  there  has  been 
much  uncertainty  and  difficulty  in  applying  the  rule.  The 
difficulty  is  to  determine  what  is  meant  by  the  term  '  moral 
duty,'  and  whether  in  any  given  case  there  is  such  a 
duty.     ... 

"  The  rule  as  to  privileged  communications  should  not  be 
so  extended  as  to  open  wide  the  flood-gates  of  injurious 
gossip  and  defamation  by  which  private  character  may  be 
overwhelmed  and  irreparable  mischief  done,  and  yet  it  should 
be  so  administered  as  to  give  reasonable  protection  to  those 
who  make  and  receive  communications  in  which  they  are 
interested,  or  in  reference  to  which  they  have  a  real,  not 
imaginary,  duty.  Every  one  owes  a  moral  duty,  not,  as  a 
volunteer  in  a  matter  in  which  he  has  no  legal  duty  or  per- 
sonal interest,  to  defame  another  unless  he  can  find  a  justifi- 
cation in  some  pressing  emergency. 

"  One  may  not  go  about  in  the  community  and,  acting 
upon  mere  rumors,  proclaim  to  everybody  the  supposed  frail- 
ties or  bad  character  of  his  neighbor,  however  firmly  he  may 
believe  such  rumors,  and  be  convinced  that  he  owes  a  social 
duty  to  give  them  currency  that  the  victim  of  them  may  be 
avoided;  and,  ordinarily,  one  can  not  with  safety,  however 
free  he  may  be  from  actual  malice,  as  a  volunteer,  pour  the 


Libel  and  Slandeb.  127 

poison  of  such  rumors  into  the  ears  of  one  who  might  be 
affected  if  the  rumors  were  true."  Bya(m  v.  Collins,  111 
N.  Y.  143,  151. 

Reports  of  judicial  and  legislative  proceedings. — "  Fair 

reports  of  judicial  and  parliamentary  proceedings  are  put  by 
the  latest  authorities  in  the  same  category  [referring  to  the 
class  of  qualified  privilege].  Such  reports  must  be  fair  and 
substantially  correct  in  fact  to  begin  with,  and  also  must  not 
be  published  from  motives  of  personal  ill-will ;  and  this 
although  the  matter  reported  was  '  absolutely  privileged  '  as 
to  the  original  utterance  of  it."  Pollock  on  Torts  (7th  ed.), 
259. 

"  An  action,  civil  or  criminal,  cannot  be  maintained 
against  a  reporter,  editor,  publisher,  or  proprietor  of  a  news- 
paper, for  the  publication  therein  of  a  fair  and  true  report 
of  any  judicial,  legislative,  or  other  public  and  official  pro- 
ceedings, without  proving  actual  malice  in  making  thp  vp-. 
port."     K  Y.  Code  Civ.  Pro.,  §  1907. 

"  The  last  section  does  not  apply  to  a  libel,  contained  in 
the  heading  of  the  report ;  or  in  any  other  matter,  added  by 
any  person  concerned  in  the  publication ;  or  in  the  report  of 
anything  said  or  done,  at  the  time  and  place  of  the  public  and 
official  proceedings,  which  was  not  a  part  thereof."  IST.  Y. 
Code  Civ.  Pro.,  §  1908. 

"  The  publication  must  be  fair,  not  garbled  so  as  to  produce 
misrepresentation,  .  .  .  But  the  report  need  not  be 
verbatim,  or  embrace  the  entire  proceedings.  It  may  be  an 
abridged  or  condensed  statement,  and  if  it  is  a  substantially 
fair  account  it  is  sufficient.  .  .  .  The  difficulty  in  the 
defense  of  cases  of  this  character  may  arise  from  what  appears 
in  the  caption  of  a  report  or  comments  of  a  reporter,  if  any 
such  is  given  to  or  made  in  the  article  published,  which  may 
unduly  characterize  the  nature  and  effect  of  the  proceeding 
in  its  relation  to  the  parties  to  it  or  to  others  in  a  manner  not 
fully  justified,  or  so  as  to  produce  an  impression  derogatory 
in  character,  which  the  proceedings  themselves  might  not 


128  Libel  and  Slander. 

furnish.  In  sncli  case  tlie  publication  will  not,  as  matter  of 
law,  be  deemed  within  the  protection  of  the  privilege.  It  is 
not  the  reporter's  judgment  of  the  correctness  of  his  comments 
and  their  import,  but  their  accuracy  and  fairness  alone  which 
give  immunity.  The  statute  does  not  give  any  protection  to 
the  publisher  in  that  respect,  but  leaves  him  subject  to  the 
responsibility  which  the  common  law  imposes  by  expressly 
excluding  from  the  operations  of  its  provisions  the  heading 
of  the  publication,  or  any  other  matter  not  part  of  the  pro- 
ceeding, added  to  the  report  of  it."  Salishury  v.  Union  & 
Advertiser  Co.,  4-5  Hun,  120,  123. 

Malice,  implied  and  express,  in  the  law  of  defamation. — 

"  Implied  malice,  in  an  action  for  libel,  consists  in  publish- 
ing, without  justifiable  cause,  that  which  is  injurious  to  the 
character  of  another.  It  is  a  presumption  dra\\m  by  the  law 
from  the  simple  fact  of  publication.  Express  malice  consists 
in  such  a  publication  from  ill-will,  or  some  wrongful  motive, 
implying  a  willingness  or  intent  to  injure,  in  addition  to  the 
intent  to  do  the  unlawful  act.  It  requires  affirmative  proof 
beyond  the  act  of  publishing,  indicating  ill-feeling  or  such 
want  of  feeling  as  to  impute  a  bad  motive.  It  does  not  be- 
come an  issue,  when  the  article  is  libellous  on  its  face,  unless 
punitive  damages  are  claimed."  Krug  v.  Pitass,  162  IST.  Y. 
154,  160. 

"  Malice  is  essential  to  every  action  for  libel.  It  has  been 
sometimes  divided  into  legal  malice,  or  malice  in  law,  and 
actual  malice,  or  malice  in  fact.  These  terms  might  seem  to 
imply  that  the  two  kinds  of  malice  are  different  in  their 
nature.  The  true  distinction,  however,  is  not  in  the  malice 
itself,  but  simply  in  the  evidence  by  which  it  is  established. 
In  all  ordinary  cases,  if  the  charge  or  imputation  complained 
of  is  injurious,  and  no  justifiable  motive  for  making  it  is 
apparent,  malice  is  inferred  from  the  falsity  of  the  charge. 
The  law,  in  such  cases,  does  not  impute  malice  not  existing 
in  fact,  but  presumes  a  malicious  motive  for  making  a  charge 
which  is  both  false  and  injurious  when   no  other  motive 


Libel  and  Slandee.  129 

appears.  Where,  howeA'er,  the  circumstances  show  that  the 
defendant  maj  reasonably  be  snpposed  to  have  had  a  just 
and  worthy  motive  for  making  the  charge,  then  the  law  ceases 
to  infer  malice  from  the  mere  falsity  of  the  charge,  and 
requires  from  the  plaintiff  other  proof  of  its  existence.  It 
is  actual  malice  in  either  case ;  the  proof  only  is  different." 
Lewis  V.  Chapman,  16  K  Y.  369,  372. 

Is  the  falsity  of  the  libel  evidence  of  malice  sufficient  to 
support  punitive  damages? —  "  The  general  rule  is  that  in  an 
action  for  libel,  proof  by  the  plaintiff  tending  to  establish  the 
falsity  of  the  alleged  libellous  publication  is  evidence  of 
malice,  and  if  such  evidence  is  introduced,  a  question  for  the 
jury  is  presented  whether  the  malice  is  of  such  a  character  as 
to  call  for  punitive  damages,  and  that  question  is  not  to  be 
withdrawn  from  them  because  the  defendant  gives  evidence 
which  tends  to  show  that  there  was  no  actual  malice."  Crane 
V.  Bennett,  177  K  Y.  106,  116. 

Commenting  on  this  statement  in  Hume  v.  Kusche,  42 
Misc.  414,  418-421,  Gajmor,  J.,  very  pertinently  says: 
"  Scientific  lawyers  have  always  understood,  and  still  under- 
stand, that  an  unprivileged  libel  per  se  is  in  a  civil  action 
presumed  by  the  law  to  be  false,  instead  of  the  plaintiff  beiiig 
under  the  necessity  of  proving  it  false  ;  and  the  law  has  never 
been  otherwise  for  an  instant.  Moreover,  unless  the  defend- 
ant i^leads  its  truth  as  a  defence,  its  falsity  stands  conceded, 
and  cannot  be  questioned  on  the  trial ;  and  if  there  be  such 
a  defence  pleaded,  the  burden  is  not  on  the  plaintiff  to  prove 
the  falsity  of  the  libel,  but  on  the  defendant  to  prove  its 
truth. 


* 


"  Of  course  the  statement  that  it  is  for  the  plaintiff  to 
prove  the  falsity  of  the  libel  in  a  civil  action  (which  the  law 
already  presumes  in  his  favor),  is  a  mere  borrowed  inad- 
vertence of  the  learned  Judge  writing,  and  not  a  decision  of 
the  court. 


10 


130  Libel  and  Slandek. 

"  This  dictum  of  the  plaintiff  having  to  prove  the  falsity 
of  the  libel  in  a  civil  action  in  order  to  prove  malice  as  a 
foundation  for  smart  money  (and  that  is  the  only  reason  for 
proving  or  claiming  malice  at  all  in  the  case  of  a  libel  or 
slander  not  of  a  qualifiedly  privileged  occasion),  seems  to 
exist  nowhere  except  in  this  State.  It  seems  to  have  first 
arisen  in  the  Samuels  case  (9  Hun,  288)  in  some  loose  sen- 
tences of  a  dissenting  opinion  which  was  adopted  on  appeal 
by  the  Court  of  Appeals  (75  N.  Y.  604),  since  which  time  it 
has  been  inadvertently  copied  several  times.  The  learned 
Judge  who  wrote  it  there  may  have  had  his  thumb  on  the 
page  of  some  good  text  writer  ;  but  if  he  had  looked  again  he 
would  have  seen  that  it  was  of  a  chapter  which  did  not  relate 
to  ordinary  actions  for  libel  or  slander,  like  the  one  before 
him,  at  all,  but  only  to  actions  for  qualifiedly  privileged 
libels  and  slanders.  In  such  cases  the  presumption  of  falsity 
does  not  exist;  there  is  no  presumption  either  way.  The 
occasion  of  qualified  privilege  does  away  with  the  presump- 
tion of  falsity,  and  also  raises  a  presumption  of  good  faith  in 
the  defendant  which  continues  though  the  libel  or  slander  be 
shown  to  be  false;  and  therefore  the  plaintiff  has  to  prove 
that  the  libel  or  slander  was  both  false  and  malicious  in  order 
to  defeat  the  privilege  and  make  out  a  case,  the  same  as  the 
plaintiff  in  an  action  for  malicious  prosecution  has  to  prove 
lack  of  probable  cause  and  malice." 

In  answer  to  this  criticism  it  may  be  said,  that  the  only 
distinction  between  "  malice  in  law  "  and  "  malice  in  fact " 
"  is  not  in  the  malice  itself,  but  simply  in  the  evidence  by 
which  it  is  established.  ...  It  is  actual  malice  in  either 
case;  the  proof  only  is  different."  Lewis  v.  Chapman,  IG 
N.  Y.  369,  372. 

Privilege  a  question  of  law.  Express  malice  a  question 
of  fact. —  "  We  there  held  [referring  to  Klinclc  v.  Colby,  40 
N.  Y.  427],  that  it  is  for  the  court  to  determine  whether  the 
subject-matter  to  which  the  alleged  libel  relates,  the  interest 
in  it  of  the  author  of  it,  or  his  relations  to  it,  are  such  as  to 


Libel  and  Slander.  131 

furnish  an  excuse;  but  that  the  question  of  good  faith, 
belief  in  the  truth  of  the  statement,  and  the  existence  of 
actual  malice,  remains  for  the  jury."  IlamUton  v.  Eno, 
81  K  Y.  116,  122. 

"  Whether  within  the  rule  as  defined  in  these  cases  a  libel- 
lous communication  is  privileged,  is  a  question  of  law ;  and 
when  upon  any  trial  it  has  been  held  as  matter  of  law  to  be 
privileged,  then  the  burden  rests  upon  the  plaintiff  to  estab- 
lish as  matter  of  fact  that  it  was  maliciously  made,  and  this 
matter  of  fact  is  for  the  determination  of  the  jury."  Byam 
V.  Collins,  111  K  Y.  143,  150. 

Absolute  privilege.  Malice  immaterial. — "  There  is  an- 
other class  of  communications  to  which  much  greater  immu- 
nity is  attached  in  the  law,  and  for  which  a  party  is  pro- 
tected from  any  action  for  damages  on  account  of  their 
defamatory  character  or  effect.  These  are  words  spoken  or 
written  in  the  due  course  of  parliamentary  or  judicial  pro- 
ceedings. In  the  case  of  judicial  proceedings,  .  .  .  , 
words  spoken  or  written  by  a  party,  by  counsel,  by  a  judge,  a 
juror  or  a  wdtness,  although  false,  defamatory  and  malicious, 
are  not  actionable  if  they  were  uttered  in  the  due  course  of 
the  proceeding,  in  the  discharge  of  a  duty,  or  the  prosecution 
or  defense  of  a  right,  and  were  pertinent  and  material  to  the 
matter  in  hand.  It  is  unquestionable  that  a  person  who  insti- 
tutes a  groundless  proceeding,  whether  civil  or  criminal, 
against  another,  upon  false  or  defamatory  charges,  is  liable 
to  an  action  for  the  injury  he  occasions.  But  that  the  action 
must  he  for  the  malicious  complaint,  indictment  or  action, 
and  not  for  the  ivords."  Perl'ins  v.  Mitchell,  31  Barb.  461, 
468. 

''  A  counsel,  or  party  conducting  judicial  proceedings,  is 
privileged  in  respect  to  words  or  writings  used  in  the  course 
of  such  proceedings  reflecting  injuriously  upon  others,  when 
such  words  and  writings  are  material  and  pertinent  to  the 
questions  involved;  .  .  .  within  such  limit,  the  protec- 
tion is  complete,  irrespective  of  the  motive  with  which  they 


132  Deceit. 

are  used ;  bnt  such  privilege  does  not  extend  to  matter,  having 
no  materiality  or  pertinency  to  such  questions."  Marsh  v. 
Ellsworth,  50  K  Y.  309,  311. 

"  In  applying  this  principle  the  courts  are  liberal,  even  to 
the  extent  of  declaring  that  where  matter  is  put  forth  by  coun- 
sel in  the  course  of  a  judicial  proceeding  that  may  possibly 
be  pertinent,  they  will  not  so  regard  it  as  to  deprive  its  author 
of  his  privilege,  because  the  due  administration  of  justice 
requires  that  the  rights  of  clients  should  not  be  imperiled  by 
subjecting  their  legal  advisers  to  the  constant  fear  of  suits 
for  libel  or  slander.  .  .  .  Any  other  rule  would  be  an 
impediment  to  justice,  because  it  would  hamper  the  search 
for  truth  and  prevent  making  inquiries  with  that  freedom 
and  boldness  which  the  welfare  of  society  requires.  If  coun- 
sel through  an  excess  of  zeal  to  serve  tlieir  clients,  or  in  order 
to  gTatify  their  o^atl  vindictive  feelings,  go  beyond  the  bounds 
of  reason  and  by  main  force  bring  into  a  lawsuit  matters  so 
obviously  impertinent  as  not  to  admit  of  discussion,  and  so 
needlessly  defamatory  as  to  w^arrant  the  inference  of  express 
malice,  they  lose  their  privilege  and  must  take  the  conse- 
quences. In  other  words,  if  the  privilege  is  abused,  protec- 
tion is  withdrawn."    Youmans  v.  Smith,  153  'N.  Y.  214,  219. 


DECEIT 

Nature  of  wrong. — "  We  now  come  to  a  kind  of  wrongs  in 
which  either  a  positive  wrongful  intention,  or  such  ignorance 
or  indifference  as  amounts  to  guilty  recklessness  (in  Roman 
terms  either  dolus  or  culpa  lata)  is  a  necessary  element;  so 
that  liability  is  founded  not  in  an  absolute  right  of  the  plain- 
tiff, but  in  the  unrighteousness  of  the  defendant."  Pollock 
on  Torts  (7th  ed.),  272. 

In  the  wrongs  previously  considered,  the  motive  or  state  of 
mind  of  the  wrong-doer  is  practically  immaterial  in  deter- 
mining the  question  of  legal  responsibility,  but  in  an  action 
of  deceit,  fraudulent  intent  is  the  gist  of  the  action.  (Koontz 
V.  Kaufman,  31  Mo.  App.  397.) 


Deceit.  133 

Deceit  defined. —  Actionable  deceit  is  the  intentional  mak- 
ing of  such  false  representations  of  material  facts  by  one 
individual  as  to  induce  another,  relying  on  their  truth,  to  act 
or  omit  to  act  to  his  damage. 

A  common-law  action. —  -'  An  action  of  deceit  is  a  com- 
mon-law action,  and  must  be  decided  on  the  same  principles, 
whether  it  be  brought  in  the  chancery  division  or  any  of  the 
common-law  divisions ;  there  being,  in  my  opinion,  no  such 
thing  as  an  equital  Ic  action  for  deceit."  Cotton,  L.  J.,  in 
Arkivright  v.  Newhold,  17  Ch.  Div.  301. 

Complication  with  contract. —  "  A  false  statement  may  be 
the  iiiJuceintnt  to  a  contract,  or  may  be  part  of  a  contract, 
and  in  these  capacities  may  give  rise  to  a  claim  for  the  rescis- 
sion of  the  contract  obtained  by  its  means,  or  for  compensa- 
tion for  breach  of  the  contract  or  of  a  collateral  warranty. 
A  false  statement  unconnected  with  any  contract  may  like- 
wise create,  by  way  of  estoppel,  an  obligation  analogous  to 
contract.  And  a  statement  capable  of  being  regarded  in  one 
or  more  of  these  ways  may  at  the  same  time  afford  a  cause  of 
action  in  tort  for  deceit. 

"  The  grounds  and  results  of  these  forms  of  liability  are 
largely  similar,  but  cannot  be  assumed  to  be  identical."  Pol- 
lock on  Torts  (7th  ed.),  273. 

"  I  think  it  important  that  it  should  be  boriiS  in  mind  that 
such  an  action  differs  essentially  from  one  brought  to  obtain 
rescission  of  a  contract  on  the  groimd  of  misrepresentation 
of  a  material  fact.  The  principles  which  govern  the  two 
actions  differ  widely.  "Where  rescission  is  claimed  it  is  only 
necessary  to  prove  that  there  was  misrepresentation.  Then, 
however  honestly  it  may  have  been  made,  however  free  from 
blame  the  person  who  made  it,  the  contract,  having  been 
obtained  by  misrepresentation,  cannot  stand.  In  an  action 
of  deceit,  on  the  contrary,  it  is  not  enough  to  establish  mis- 
representation alone.  It  is  conceded  on  all  hands  that  some- 
thing more  must  be  proved  to  cast  liability  upon  the  defend- 


134  Deceit. 

ant,  though  it  has  been  a  matter  of  controversy  what  addi- 
tional elements  are  requisite."  Lord  llerschell  in  Derry  v. 
Peeh,  L.  K.  14  App.  Cas.  337. 

Essential  elements. —  In  order  to  recover  in  an  action  for 
deceit,  the  plaintiff  must  prove : 

1.  That  the  defendant  made  false  representations  of  ma- 
terial facts. 

2.  That  the  defendant  knew,  or  was  culpably  ignorant  of 
their  falsity. 

3.  That  the  defendant  intended  that  the  plaintiff  should 
act  thereon. 

4.  That  the  plaintiff  believed  and  had  right  to  rely  upon 
them  as  true. 

5.  That  the  plaintiff  acted  thereon  to  his  damage. 

"  There  is  no  doubt  or  question  as  to  what  elements  are 
requisite  to  sustain  an  action  for  false  pretences.  The  essen- 
tial constituents  of  such  an  action  have  been  understood  from 
the  time  such  actions  were  first  maintained.  They  are  tersely 
stated  by  Church,  Ch.  J.,  in  Arthur  v.  Grisivold,  55  N.  Y. 
400,  viz. :  '  Representation,  falsity,  scienter,  deception  and 
injury.'  There  must  have  been  a  false  representation,  known 
to  be  such,  made  by  the  defendant,  calculated  and  intended 
to  influence  the  plaintiff,  and  which  came  to  his  knowledge, 
and  in  reliance  upon  which  he,  in  good  faith,  parted  with 
property  or  incurred  the  obligation  which  occasioned  the  in- 
jury of  which  he  complains.  All  these  circumstances  must 
be  found  to  exist,  and  the  absence  of  any  one  of  them  is  fatal 
to  a  recovery."     Brachett  v.  Griswold,  112  IvT.  Y.  454,  467. 

False  representations  of  material  facts.— In  a  legal  sense, 
a  representation  is  any  clear  impression  of  fact,  conveyed  by 
word,  act  or  conduct.      To  be  actionable  it  must  be  false,  and 
must  purport  to  state  material  matter  of  fact,  not  mere  prom- 
ises or  matter  of  opinion. 

"A  promise  is  distinct  from  a  statement  of  fact,  and  breach 
of  contract,  whether  from  w^ant  of  power  or  of  will  to  per- 


Deceit.  135 

form  one's  promise,  is  a  different  thing  from  deceit.  Again 
a  mere  statement  of  opinion  or  inference,  the  facts  on  which 
it  purports  to  be  founded  being  notorious  or  equally  known 
to  both  parties,  is  different  from  a  statement  importing  that 
certain  matters  of  fact  are  within  the  particular  knowledge 
of  the  speaker."      Pollock  on  Torts  (7th  ed.),  277. 

"  The  learned  counsel  for  the  respondent  has  stated  in  the 
broadest  and  most  unqualified  terms,  as  a  proposition  not  to 
be  disputed,  '  that  no  man  is  liable  for  the  expression  of  his 
opinion  or  judgment.'  But  this  is  true  only  when  the  opinion 
stands  by  itself  and  is  intended  to  be  taken  as  distinct  from 
any  thing  else,  and  where  the  proposition  is  found  in  the 
books  it  is  so  restricted.  Thus  it  is  said :  '  Matters  of 
opinion,  stated  merely  as  such,  will  not  in  general  form  the 
ground  to  a  legal  charge  of  fraud  '  (Leake  on  Contracts,  355), 
giving  many  instances  and  also  exceptions  to  the  rule.  State- 
ments of  value  have  been  held  insufiicient  to  sustain  an  action 
where,  as  is  said,  they  were  '  mere  matters  of  opinion ' 
(Simar  v.  Canaday,  53  N.  Y.  298,  306),  but  at  the  same 
time  it  is  shown  that  under  certain  circumstances  they  are  to 
be  regarded  as  affirmations  of  fact,  and  then  if  false  an  action 
can  be  maintained  upon  them.  The  same  rule  applies  where 
A  desiring  credit  of  B  for  a  certain  amount,  the  latter  asks 
C  as  to  the  solvency  of  A  and  he  replies,  '  he  is  good,  as  good 
as  any  man  in  the  country  for  that  sum.'  Xo  doubt  this 
involves  opinion,  but  it  is  held  that  if  the  recommendation 
was  made  in  bad  faith  and  with  knowledge  that  A  was  in- 
solvent, C  would  be  liable  (Upton  v.  Vail,  6  I.  R.  181)  ;  and 
so  as  to  every  representation  concerning  a  matter  of  fact  by 
which  one  man  is  induced  to  change  his  position  to  his  injury 
or  the  benefit  of  another.  It  may  be  so  expressed  as  to  bind 
the  person  making  it  to  its  truth  whether  it  take  the  form  of 
an  opinion  or  not,  or  it  may  appear  that  it  was  not  intended  to 
be  acted  upon.  In  the  latter  case  no  obligation  is  incurred." 
Hichey  v.  Morrell,  102  N.  Y.  454,  463. 

Vague  or  indefinite  statements  are  not  actionable ;  ambigu- 
ous statements  may  be  actionable. 


136  Deceit. 

Silence  and  artifice. —  Silence  is  not  fraudulent  unless 
tlicrc  is  a  legal  or  an  equitable  obligation ■  to  speak. 

"  There  can  usually  be  no  fraud  in  silence,  without  inten- 
tional concealment,  for  it  may  be  pui*ely  accidental. 
Whether  the  duty  to  disclose  exists  in  a  given  case,  depends 
upon  the  fiduciary  or  other  relation  of  the  parties,  the  nature 
of  the  contract,  the  degTee  of  trust  reposed,  whether  expressly 
or  impliedly,  the  value  or  nature  of  the  particular  fact,  the 
relative  knowledge  of  the  contracting  parties,  and  other  cir- 
cumstances of  the  case."     Giiel  v.  Lomax,  89  Ala.  427. 

"  The  general  rule  is,  that  a  party  engaged  in  a  business 
transaction  with  another  can  commit  a  legal  fraud  only  by 
fraudulent  misrepresentations  of  facts,  or  by  svich  conduct  or 
such  artifice  for  a  fraudulent  purpose  as  will  mislead  the 
other  party  or  throw"  him  off  from  his  giiard,  and  thus  cause 
him  to  omit  inquiry  or  examination  which  he  would  other- 
wise make.  A  party  buying  or  selling  property,  or  executing 
instruments,  must  by  inquiry  or  examination  gain  all  the 
knowdedge  he  desires.  He  cannot  proceed  blindly,  omitting 
all  inquiry  and  examination,  and  then  complain  that  the 
other  party  did  not  volunteer  all  the  information  he  had. 
Such  is  the  general  rule.  But  there  are  exceptions  to  this 
rule.  Where  there  is  such  a  relation  of  trust  and  confidence 
between  the  parties  that  the  one  is  under  some  legal  or  equita- 
ble obligation  to  give  full  information  to  the  other  party  — 
information  which  the  other  party  has  a  right,  not  merely 
in  foro  conscientiae,  but  jwris  et  de  jure,  to  have,  then  the 
withholding  of  such  information  purposely  may  be  a  fraud." 
Dambmamv  v.  Schulting,  75  X.  Y.  55,  61. 

Defendant's  knowledge  of  falsity.     Intention. —  Proving 

defenchmt's  knowledge  of  the  falsity  of  his  representations 
is  often  called  proving  scienter. 

Fraud  may  be  proved  by  showing: 

1.  False  representations,  knowingly  made. 

2.  False  representations,  recklessly  made. 

3.  False  representations,  positively  made,  when  the  de- 
fendant only  believed  them  to  be  true,  without  actual  knowl- 
edge. 


Deceit.  137 

4.  False  representations,  made  when  it  was  the  duty  of  the 
defendant  to  know  of  their  falsity. 

"  Where  a  party  to  a  contract  in  making  a  false  represen- 
tation is  honestly  mistaken,  there  is  no  ingredient  of  fraud 
in  the  case.  (Wakeman  v.  Dalley,  51  X.  Y.  27;  Marsli  v. 
Falher,  40  id.  5G6,  citing  Chester  v.  Comstock  in  note  ;  Meyer 
V.  Amidon,  45  id.  169;  Oberlander  v.  Spiess,  id.  175.)  This 
rule,  however,  docs  not  permit  him  to  make  false  statements 
recklessly  or  without  some  foundation  for  belief  in  them. 
Before  one  positively  afhrms  the  existence  of  a  fact,  he  must 
proceed  upon  reasonable  inquiry,  and  have  some  apparently 
good  ground  for  his  aflirmation."  Hammond  v.  Pennoch, 
61  K  Y.  145,  150. 

"  The  jury  were  properly  instructed,  that  a  statement 
recklessly  made,  without  knowledge  of  the  truth,  was  a  false 
statement  knowingly  made,  within  the  settled  rule."  Cooper 
Y.  Schlesinger,  111  U.  S.  148,  155. 

"  It  was  formerly  understood  that,  to  enable  a  plaintiff  to 
sustain  an  action  based  upon  fraudulent  Tepresentations,  he 
must  prove  that  the  defendant  made  the  representations 
knowing  them  to  be  false,  with  intent  to  deceive,  and  that  the 
plaintiff  relied  upon  them  and  suffered  damage  in  conse- 
quence thereof.  .  .  .  But  a  new  rule  has  sometimes  been 
supposed  to  have  been  introduced  by  the  decision  in  the  case 
of  Bennett  v.  Judson,  21  N.  Y.  238.  The  rule,  as  stated  in 
the  head  note  to  that  case,  is  as  follows :  '  One  who,  with- 
out knowledge  of  its  truth  or  falsity,  makes  a  material  mis- 
representation, is  g-uilty  of  fraud  as  much  as  if  he  knew^  it  to 

be  untrue.'     This  statement  of  the  rule  is  not  accurate.    .    .     . 
******** 

"  But  since  the  argument  of  this  case,  tbe  cases  of  Meyer 
V.  Amidon,  and  Oberlander  v.  Spiess  (45  IST.  Y.  169,  175) 
have  been  published.  By  these  cases  the  rule  applicable  to 
actions  of  fraud  has  been  relieved  of  the  uncertainty  and  con- 
fusion produced  by  the  case  of  Bennett  v.  Judson.  They  lay 
down  the  rule  that  an  action  founded  upon  the  deceit  and 
fraud  of  the  defendant  cannot  be  maintained  in  the  absence 
of  proof  that  he  believed  or  had  reason  to  believe  at  the  time 


138  ,  Deceit. 

he  made  tliem  that  the  representations  made  by  him  were 
false,  and  that  they  were  for  that  reason  fraudulently  made, 
or  that  he  assumed  or  intended  to  convey  the  impression  that 
he  had  actual  knowledge  of  their  truth,  though  conscious 
that  he  had  no  such  knowledge."  Wakeman  v.  Dalley,  51 
N.  Y.  27,  32. 

"One  who  falsely  asserts  a  material  fact,  susceptible  of 
accurate  knowledge  to  be  true  of  his  own  knowledge,  and 
thereby  induces  another  to  act  upon  the  fact  represented  to 
his  prejudice  commits  a  fraud  which  will  sustain  an  action 
for  deceit.  This  is  not  an  exception  to,  but  an  application  of 
the  principle  that  actual  fraud  must  be  shown  to  sustain 
such  an  action.  The  purpose  of  the  party  asserting  his  per- 
sonal knowledge  is  to  induce  belief  in  the  fact  represented, 
and  if  he  has  no  knowledge,  and  the  fact  is  one  upon  which 
special  knowledge  can  be  predicated,  the  inference  of  fraudu- 
lent intent  in  the  absence  of  explanation  naturally  results." 
Kountze  v.  Kennedy,  147  N.  Y.  12-1,  130. 

"An  action  to  recover  damages  for  deceit  cannot  be  main- 
tained without  proof  of  fraud  as  well  as  injury.  Actionable 
deceit  cannot  be  practiced  without  an  actual  intention  to 
deceive,  resulting  in  actual  deception  and  consequent  loss. 
But  while  there  must  be  a  furtive  intent,  it  may  exist  when 
one  asserts  a  thing  to  be  true  which  he  does  not  know  to  be 
true,  as  it  is  a  fraud  to  affirm  positive  knowledge  of  that 
which  one  docs  not  positively  know.  Where  a  party  repre- 
sents a  material  fact  to  be  true  to  his  personal  knowledge, 
as  distinguished  from  belief  or  opinion,  when  he  does  not 
know  whether  it  is  true  or  not  and  it  is  actually  untrue, 
he  is  guilty  of  falsehood,  even  if  he  believes  it  to  be  true, 
and  if  the  statement  is  thus  made  with  the  intention  that 
it  shall  be  acted  upon  by  another,  who  does  so  act  upon  it  to 
his  injury,  the  result  is  actionable  fraud."  Uadcock  v. 
Osmer,  153  N.  Y.  604,  G08. 

Plaintiff's  reliance  and  action  upon  representations  to  his 

damage. — ''  Fraud  without  damage  or  damage  without  fraud 
will  not  sustain  the  action  for  deceit  (3  Bulstr.  95)  ;  and  a 


Deceit.  139 

false  and  fraudulent  representation  made  hj  one  party  to 
induce  a  contract  entered  into  by  the  other,  is  not  actionable 
unless  the  party  to  whom  it  was  made  believed  the  represen- 
tation to  be  true  and  acted  upon  the  faith  of  it  to  his  damage. 
In  a  legal  sense  a  person  is  not  damaged  by  a  false 
representation  by  which  he  is  not  influenced.  It  is  incum- 
bent upon  the  party  claiming  to  recover  in  an  action  for 
deceit,  founded  upon  false  representations,  to  show  that  he 
was  influenced  by  them.  It  does  not  require  very  strong 
proof  to  establish  it.  In  most  cases  it  may  be  inferred  from 
the  circumstances  attending  the  transaction.  But  in  all  cases 
it  is  a  fact  which  should  be  aven-ed  in  the  complaint,  and 
must  be  maintained  by  evidence."  Taylor  v.  Guest,  58  IST.  Y. 
262,  266. 

"  It  is  of  the  very  essence  of  an  action  of  fraud  or  deceit, 
that  the  same  should  be  accompanied  by  damage,  and  neither 
damnum  absque  injuria,  or  injuria  absque  damno,  by  them- 
selves constitute  a  good  cause  of  action."  Deobold  v.  Opper- 
mann,  111  N.  Y.  531,  541. 

"  I  think  the  general  rule  is  that  if  the  facts  represented 
are  not  matters  peculiarly  within  the  party's  knowledge,  and 
the  other  party  has  the  means  available  to  him  of  knowing, 
by  the  exercise  of  ordinary  intelligence,  the  truth  or  the  real 
quality  of  tiie  subject  of  the  representation,  he  must  make 
use  of  those  means,  or  he  will  not  be  heard  to  complain  that 
he  was  induced  to  enter  into  the  transaction  by  misrepre- 
sentations."    SchumaJcer  v.  Mather,  133  N.  Y.  590,  596. 

Who  may  rely  on  representations. —  Kepresentations  may 

be  intended  for, — 

1.  A  particular  individual. 

2.  Any  one  of  a  class  of  persons. 

3.  Any  one  of  the  public. 

4.  One  person  to  communicate  to  another. 

"  It  is  not  necessary  that  the  false  representations  should 
have  been  made  by  the  defendant  personally.  If  he  author- 
ized and  caused  it  to  be  made  it  is  the  same  as  though  he 
made  it  himself.     Nor  is  it  necessary  that  it  should  have  been 


140  Malicious  Pkosecution. 

made  directly  to  the  plaintiif.  If  it  was  made  to  the  public 
at  large  for  the  purpose  of  influencing  the  action  of  any 
individual  who  may  act  upon  it,  any  person  so  acting  upon 
it  and  sustaining  injury  thereby  may  maintain  an  action. 
It  is  on  this  ground  that  promoters  or  directors  of  corpora- 
tions have  been  held  liable  for  false  representations  in  a  pros- 
pectus or  reports,  or  other  papers  issued  by  the  corporation 
with  their  sanction,  by  which  individuals  have  been  induced 
to  purchase  the  stock  or  become  creditors  of  the  corporation, 
and  the  fact  that  the  false  report  or  prospectus  purports  to 
be  the  act  of  the  corporation  and  not  of  the  promoters  or 
directors,  does  not  relieve  them  from  personal  responsibility." 
Brackett  v.  Griswold,  112  N.  Y.  454,  467. 


MALICIOUS   PROSECUTION 

Essential  elements. — "  To  maintain  an  action  for  ma- 
licious prosecution,  three  facts,  .  .  .  ,  must  be  estab- 
lished :  — 

1.  That  the  prosecution  is  at  an  end,  and  was  determined 
in  favor  of  the  plaintiff. 

2.  The  want  of  probable  cause. 

3.  Malice."     Vanderhilt  v.  MatUs,  5  Duer,  304,  307. 

"  The  plaintiff,  to  maintain  the  action,  must  show  that  the 
prosecution  was  instigated  by  the  defendant,  that  it  has  been 
determined  in  his  favor,  that  there  was  no  probable  cause  and 
that  the  defendant  acted  from  malice."  Wass  v.  Stephens, 
128  K  Y.  123,  127. 

Termination. —  This  signifies  such  a  disposition  of  the  al- 
leged wa-ongful  prosecution  that  it  cannot  be  reviewed  or  con- 
tinued without  beginning  de  novo. 

"As  a  general  rule,  the  plaintiff  must  aver  in  his  declara- 
tion, and  prove  on  the  trial,  the  determination  of  the  former 
suit  in  his   favor,     .     .     .     The   reason   for  this   proof  is 


Malicious  Prosecution.  141 

obvious,  for  otherwise  he  might  recover  in  this  action,  and 
still  be  convicted,  or  have  judgment  against  him  in  the  former 
suit."     Bump  V.  Betts,  19  Wend.  421. 

"  The  question  is,  whether  the  prosecution  instituted  by 
the  defendant  can  be  said  to  have  been  terminated,  disposed 
of,  or,  as  the  books  usually  say,  at  an  end.  It  is  agreed  by 
the  books  that  this  is  an  essential  condition,  I  by  no  means 
accede  to  the  doctrine  inadvertently  advanced  by  some  judges, 
that  all  right  to  prosecute  for  the  ojfense  must  be  tei-minated 
by  a  technical  acquittal.  (See  per  Buller,  J.,  in  Morgan  v. 
Hughes,  2  T.  E.  225,  231,  2.)  Nor  can  it  be  essentially 
necessary  that  there  should  be  an  adjudication  of  the  magis- 
trate, or  indeed  any  judicial  decision  upon  the  merits,  by 
any  court,  as  seems  to  be  supposed  by  some.  (See  Secor  v. 
Bahcocl',  2  Johns.  203;  McCormick  v.  Lisson,  1  Cowen, 
715.)  The  manner  in  which  the  prosecution  is  disposed  of, 
as  if  it  be  by  compromise,  which  was  the  case  last  cited,  may 
interpose  great  if  not  insurmountable  obstacles  to  showing  a 
want  of  probable  cause ;  but  the  technical  prerequisite  is  only 
that  the  particular  prosecution  be  disposed  of  in  such  a  man- 
ner that  this  cannot  be  revived,  and  the  prosecutor  must  be 
put  to  a  ncAV  one."      Clarh  v.  Cleveland,  6  Hill,  344,  346. 

Reason  of  the  rule. — "  The  rule  requiring  that  before  an 
action  for  malicious  prosecution  can  be  maintained  the  plain- 
tiff is  bound  to  show  a  termination  of  the  criminal  proceed- 
ing, has  for  its  foundation,  that  it  cannot  be  known  that  the 
prosecution  was  unjust  or  unfounded  until  it  is  terminated, 
and  if  the  action  for  malicious  prosecution  were  allowed  to 
be  maintained  before  the  termination  of  the  criminal  proceed- 
ing, the  plaintiff  might  be  found  guilty  in  that  proceeding 
and  yet  maintain  her  action  for  malicious  prosecution  on  the 
ground  that  she  was  not  guilty,  and  that  the  defendant  had 
no  probable  cause  to  believe  her  guilty ;  and  thus  there  might 
be  two  conflicting  determinations  as  to  the  same  transaction. 
It  cannot  in  reason  make  any  difference  how  the 
criminal  prosecution  is  terminated,  provided  it  is  terminated, 


142  Malicious  Prosecution. 

and  at  an  end.  .  .  .  The  motive  of  tlie  judge  or  justi?f> 
in  making  the  discharge  is  wholly  immaterial.  The  real 
foundation  of  the  action  is  the  malicious  prosecution  without 
probahle  cause,  and  the  termination  of  the  criminal  proceed- 
ing is  a  mere  technical  matter  in  no  way  concerning  the 
merits  of  the  action  and  is  a  mere  condition  precedent  to  its 
maintenance."     Robbins  v.  Bobbins,  133  N.  Y.  597,  599. 

Termination:  nolle  prosequi. —  "The  prosecution  com- 
plained of  in  this  action  as  falsely  and  maliciously  made,  was 
a  criminal  prosecution.  The  plaintiff  avers  that  the  defend- 
ant falsely  accused  him  of  a  criminal  libel,  and  that  he  made 
the  accusation  maliciously.  The  criminal  charge  resulted  in 
an  indictment,  and  the  complaint  avers  that  the  prosecution 
thereof  has  been  tei*minated  in  plaintiff's  favor  by  the  entry 
of  a  nolle  prosequi,  on  motion  of  the  district-attorney  of  the 
county  where  the  indictment  was  pending  and  triable,  and 
with  leave  of  the  court;  that  the  motion  was  made  'after 
consulting  with  defendant,  and  in  compliance  with  his  re- 
quest.' I  think  this  was  a  sufficient  averment  of  the  termina- 
tion of  the  criminal  charge  in  favor  of  the  plaintiff. 
If  the  action  complained  of  as  malicious  had  been  a  civil 
action,  an  averment  that  a  plaintiff  had  asked  leave  of  the 
court  to  abandon  it,  and  that  such  leave  had  been  granted, 
would  have  been  sufficient.  The  district-attorney  acts  for  the 
people  in  criminal  cases,  except  that  he  must  have  leave  of 
the  court  to  enter  the  nolle  prosequi.  Where  this  leave  is 
obtained  and  the  order  is  entered,  it  is  a  record  promise  by 
the  people,  that  the  indictment  will  be  no  further  prosecuted." 
Moulton  V.  Bcecher,  1  Abb.  X.  C.  193,  234. 

Termination:  appeal  from  judgment. —  "When  a  party 
has  a  final  judgment  in  his  favor  upon  a  trial  the  prosecution 
is  so  far  terminated  that  he  may  sue  for  malicious  prosecu- 
tion. If  an  appeal  be  taken  from  the  judgment,  that  may 
furnish  a  reason  for  staying  the  trial  of  the  action  for  ma- 
licious prosecution  until  the  decision  of  the  appeal.     If  the 


Malicious  Prosecution.  143 

judgment  should  be  affirmed,  then  it  could  not  be  held  that 
the  action  was  prematurely  commenced ;  if  it  should  be  re- 
versed, the  action  would  then  again  be  pending,  and  that  fact 
would  furnish  a  defense.  A  party  commencing  such  an 
action,  while  an  appeal  from  the  decision  in  his  favor  is  pend- 
ing, simply  takes  the  risk  of  an  adverse  decision  upon  the 
appeal  and  thus  suffering  defeat  in  the  action."  Marks  v. 
Townsend,  97  X.  Y.  590,  595. 

What  is  probable  cause. — "  Probable  cause  is  the  knowl- 
edge of  facts,  actual  or  apparent,  strong  enough  to  justify  a 
reasonable  man  in  the  belief  that  he  has  lawful  grounds  for 
prosecuting  the  defendant  in  the  manner  complained  of. 
The  want  of  probable  cause  does  not  mean  the  want  of  any 
cause,  but  the  want  of  any  reasonable  cause,  such  as  would 
persuade  a  man  of  ordinary  care  and  prudence  to  believe  in 
the  truth  of  the  charge.  Probable  cause  does  not  necessarily 
depend  upon  the  actual  guilt  of  the  person  prosecuted,  but 
may  rest  upon  the  prosecutor's  belief  in  his  guilt  when  based 
on  reasonable  grounds.  One  may  act  upon  what  appears  to 
be  true,  even  if  it  turns  out  to  be  false,  provided  he  believes 
it  to  be  true  and  the  appearances  are  sufficient  to  justify  the 
belief  as  reasonable.  Belief  alone,  however  sincere,  is  not 
sufficient,  for  it  must  be  founded  on  circumstances  which 
make  the  belief  reasonable.  If  probable  cause  exists,  it  is  an 
absolute  protection  against  an  action  for  malicious  prosecu- 
tion, even  when  express  malice  is  proved.  Thus  an  innocent 
person  may  be  prosecuted  unjustly  and  subjected  to  expense 
and  disgrace  with  no  right  to  call  the  prosecutor  to  account, 
provided  he  acted  upon  an  honest  and  reasonable  belief  in 
commencing  the  proceeding  complained  of.  Peace  and  good 
order  exact  this  hardship  from  the  individual  for  the  benefit 
of  the  people  at  large,  so  that  citizens  may  not  be  prevented 
by  the  fear  of  consequences  from  attempting  to  assert  their 
own  rights  or  to  vindicate  the  cause  of  public  justice  by  an 
appeal  to  the  courts."     Burt  v.  Smith,  181  N.  Y.  1,  5-6. 


l^.^**-****     <: 


144  Malicious  Peosecution. 

When  facts  must  be  known. —  ''A  groundless  suspicion, 
unwarranted  bv  the  conduct  of  the  accused,  or  by  facts  known 
to  the  accuser,  when  the  accusation  is  made,  will  not  exempt 
the  latter  from  liability  to  an  innocent  person  for  damages 
for  causing  his  arrest."     Carl  v.  Ayers,  53  N.  Y.  14,  17. 

Mere  belief. — "  "Where  the  defendant  in  an  action  for  ma- 
licious prosecution,  for  causing  the  arrest  of  the  plaintiff  on 
a  criminal  charge  was  in  fact  the  prosecutor,  his  mere  belief 
that  the  plaintiff  was  guilty  is  not  probable  cause  for  the 
prosecution,  if  he  acted  negligently  or  irrationally,  and  upon 
suspicion  not  warranted  by  facts,  or  by  appearances  which 
would  lead  a  prudent  man  to  suppose  the  plaintiff  guilty. 
A  real  belief  and  reasonable  grounds  for  it  must  concur  to 
afford  a  justification.  Good  faith  alone  is  not  suflicient." 
Farnam  v.  Feeley,  5G  iST.  Y.  451,  455. 

Conviction. — ''  The  law^  so  far  encourages  criminal  com- 
plaints as  to  protect  the  complainant  against  a  civil  action 
for  damages  in  case  the  criminal  proceeding  fairly  conducted 
results  in  the  conviction  of  the  person  charged  with  crime. 
Such  conviction  fairly  obtained,  without  fraud  or  conspiracy, 
is  held  to  be  conclusive'  evidence  of  probable  cause."  Rob- 
bins  V.  Bobbins,  133  :N'.  Y.  597,  599. 

''  In  Whitney  v.  Peclcham,  15  Mass.  Eep.  243,  it  appeared 
that  the  plaintiff,  after  being  convicted  before  a  justice  of  an 
assault  and  battery,  appealed  to  the  common  pleas,  where 
he  was  acquitted ;  yet  held,  that  he  could  not  maintain  an 
action  for  malicious  prosecution,  the  conviction  being  con- 
clusive evidence  of  probable  cause.  The  doctrine  of  this  case 
underwent  an  able  and  searching  examination  in  Burt  v. 
Place,  4  Wend.  591,  where  it  was  adjudged  that  the  action 
might  be  maintained,  under  such  circumstances,  notwith- 
standing the  decision  of  the  justice,  provided  there  was  proof 
of  malice  and  want  of  probable  cause."  Clark  v.  Cleveland, 
6  Hill,  344,  346,  note  (a). 


Malicious  Prosecution.  145 

In  Nicholson  v.  Sternberg,  61  App,  Div.  51,  it  was  held 
that  a  judgment  of  conviction,  reversed  on  appeal,  is  prima 
facie  evidence  of  probable  cause. 

Nor  is  it  conclusive  "  where  the  malicious  prosecution  com- 
plained of  arises  out  of  proceedings  on  attachment  in  tho 
absence  of  the  party  defendant,  in  which  no  opportunity  is 
afforded  him  to  defend  the  suit.  A  judgment  against  him 
under  such  circumstances,  cannot  be  deemed  conclusive  evi- 
dence of  probable  cause,  or  want  of  malice,  as  in  cases  of 
personal  service  of  process."  Bump  v.  Betts,  19  Wend.  421, 
422. 

Acquittal  or  discharge.—  "  Upon  the  question  of  what  is  a 
sufficient  showing  in  the  first  instance  of  the  want  of  prob- 
able cause,  the  decisions  of  the  American  courts  are  not  quite 
uniform.  As  the  conviction  of  a  person  by  an  examining 
magistrate  of  an  offense  charged  upon  him  has  been  almost 
universally  held  to  be  conclusive  evidence  of  probable  cause, 
it  would  seem  reasonable  that  the  converse  of  the  proposition 
must  hold,  that  his  acquittal  should  be  conclusive  evidence 
of  the  want  of  probable  cause ;  but  such  is  not  tha 
law, 

"  Our  courts,  however,  seem  to  be  settling  down  to  the  rule 
that  the  discharge  of  a  person  accused  of  crime  by  a  commit- 
ting magistrate,  or  the  ignoring  of  like  charges  by  a  grand 
jury,  and  similar  adjudications,  are  prima  facie  evidence  of 
the  want  of  probable  cause,  sufficient  to  cast  upon  the  op- 
posite party  the  burden  of  proving  the  contrary.      On  the 
other  hand  the  waiving  of  a  preliminary  examination,  the 
disagreement  of  a  jury,  their  hesitation  in  finding  a  verdict 
of  acquittal,   requiring  the  accused  to  enter  into  a  recog- 
nizance by  an  examining  magistrate,  the  finding  of  an  indict-  'Ja^^-^^^'-*-^ 
ment  by  a  grand  jury,  have  been  held  to  be  prima  facie  ._  ^_ ,  - 
evidence   of  the  existence  of  probable  cause."     ISTewell  on    .^  yvw;,j« 
Malicious  Prosecution,  289-290.  •  . 

"  The  discharge  of  the  plaintiff,  by  the  examining  magis- 
trate, is  prima  facie  evidence  of  the  want  of  probable  cause, 
10 


146  Malicious  Prosecution. 

sufficient  to  throw  upon  the  defendant  the  burden  of  proving 
the  contrary."     2  Greenleaf,  Ev.,  §  455. 

"  The  immediate  dismissal  of  the  complaint  by  the  magis- 
trate is  prima  facie  evidence  that  it  [the  charge]  was  made 
without  cause."     Gould  v.  Sherman,  10  Abb.  Pr.  411,  412. 

"  In  an  action  for  malicious  prosecution,  the  want  of  prob- 
able cause  will  not  be  inferred  from  the  mere  failure  of  the 
prosecution,  nor  from  a  mere  acquittal  upon  trial,  but  the 
weight  of  authority  seems  to  be  in  accordance  with  the  ruling, 
that  proof  that  the  plaintiff  was  discharged  by  the  examining 
magistrate,  for  want  of  probable  cause  to  believe  him  guilty, 
makes  a  prima  facie  case  for  the  plaintiff  in  this  respect,  so 
that  the  defendant  is  called  upon  to  offer  proof  to  the  con- 
trary."    Frost  V.  Holland,  75  Me.  108,  112. 

"  To  recover  in  this  class  of  cases,  there  must  be  malice  on 
the  part  of  the  person  starting  the  prosecution,  and  a  want  of 
probable  cause  for  believing  that  the  accused  is  guilty  of  the 
offense  charged ;  nor  is  a  want  of  probable  cause  shown  by  the 
acquittal  of  the  accused.  If  such  were  the  i-ule,  but  few,  if 
any,  would  dare  to  make  any  effort  to  enforce  the  criminal 
laws  of  the  State.  To  do  so,  would  involve  the  prosecuting 
witness,  wherever  the  prosecution  failed,  in  vexatious  litiga- 
tion and  loss,  and  none  could  be  expected  to  incur  such 
hazards.  Prosecuting  witnesses  must  be  protected  where 
they  act  in  good  faith  on  facts  and  circumstances  which  are 
such  as  to  induce  a  belief  of  guilt  in  the  mind  of  a  reasonable 
person.  This  has  ever  been  the  rule  of  the  law.  The  issue, 
then,  for  the  jury  to  try  is  not  the  guilt  of  the  plaintiff.  If 
the  defendant  acted  in  good  faith,  on  evidence,  whether  true 
or  false,  which  is  sufficient  to  create  a  reasonable  belief  that 
the  accused  was  guilty  of  the  offense,  he  is  protected."  An- 
derson V.  Friend,  85  111.  135,  136. 

"  In  such  an  action,  it  is  necessary  to  give  some  evidence 
of  the  want  of  probable  cause.  It  is  insufficient  to  prove  a 
mere  acquittal ;  that,  alone,  is  not  prima  facie  evidence  of 
the  want  of  probable  cause."  Vanderhilt  v.  Mathis,  5  Duer. 
304,  307. 


Malicious  Pkosecutiox.  147 

"  This  result  [acquittal]  is  not  prima  facw  evidence  of  the 
want  of  probable  cause."  Scott  v.  Simpson,  1  Sand.  601, 
605. 

Advice  of  magistrate.—''  The  defendant  insists  that  he 
is  not  responsible,  because  he  stated  the  case  to  a  magistrate, 
who  thereupon  issued  the  warrant ;  or,  in  other  words,  he  is 
responsible  for  the  truth  of  his  statements  to  the  magistrate, 
but  not  for  the  legal  conclusions  of  that  official  therefrom, 
citing  Thaule  v.  Krekeler  (81  IST.  Y.  428);  Anderson  v. 
Hoiv  (116  id.  336).  Since  the  decision  in  Hazzard  v.  Flury 
(supra),  I  understand  the  rule  to  be  that  advice  of  counsel 
and  the  like  is  not  a  complete  defense.  In  this  case,  where 
the  question  of  probable  cause  was  for  the  court,  the  advice 
of  counsel  or  of  magistrate  is  of  no  importance  on  that 
question."     Parr  v.  Loder,  97  App.  Div.  218,  221. 

Advice  of  counsel.—  Mr.  Bigelow  (Torts,  7th  ed.,  p.  103) 
says :  "If  the  prosecutor  takes  the  advice  of  a  practising 
lawyer  upon  the  question  whether  the  facts  within  his  knovrl- 
edge  are  such  as  to  justify  a  complaint  assuming  that  he  has 
fully,  fairly,  and  honestly  stated  such  facts,  and  acts  bona 
fide  upon  the  advice  given,  he  will  be  protected  even  though 
the  counsel  gave  erroneous  advice.  That  is,  he  will  be  pro- 
tected, though  he  might  not  have  been  in  possession  of  facts 
such  as  would  have  justified  a  prosecution  without  the  ad- 
vice." But  the  Xew  York  Court  of  Appeals  says :  "  The 
fact  that  his  counsel  may  have  advised  him  [that  certain  acts 
constituted  larceny]  .  .  .  ,  while  proper  upon  the  ques- 
tion of  malice,  does  not  form  the  basis  for  a  finding  of  fact 
that  he  [the  defendant]  had  probable  cause  to  believe  the 
plaintiff  guilty  of  larceny.  Probable  cause  may  be  founded 
on  misinformation  as  to  the  facts,  but  not  as  to  the  law. 

*'  The  facts  within  his  knowledge  did  not  indicate  that  a 
crime  had  been  committed.  They  did  not  tend  to  cause  a 
man  with  knowledge  of  the  law  to  suspect  or  believe  that  it 
had  been  violated,  and  the  defendant  was  bound  to  know  the 
law."     (Hazzard  v.  Flurij,  120  ^^.  Y.  223,  227.) 


148  Malicious  Prosecution. 

Granting  a  temporary  injunction. —  "As  an  order  for  a 
temporary  injunction  requires  but  a  prima  facie  case,  we 
think  it  is  only  prima  facie  evidence  of  probable  cause." 
Burt  V.  Smith,  181  N.  Y.  1,  8. 

Malice. — •  The  malice  required  to  be  proved  in  actions  for 
malicious  prosecution  is  not  malice  in  its  restricted,  popular 
signification,  but  malice  in  its  enlarged,  legal  sense. 

"  It  is  well  established  that  the  i)laintiff  is  not  required  to 
prove  express  malice,  in  the  popular  signification  of  the  term, 
as  that  defendant  was  prompted  by  malevolence,  or  acted 
from  motives  of  ill  will,  resentment,  or  hatred  towards  tho 
plaintiff.  It  is  sufficient  if  he  prove  it  in  its  enlarged  legal 
sense.  '  In  a  legal  sense,  any  act  done  willfully  and  pur- 
posely, to  the  f)i"ejudice  and  injury  of  another,  wdiich  is 
unlawful,  is,  as  against  that  person,  malicious.'  (Com.  v. 
Snelling,  15  Pick.  337.)  '  The  malice  necessary  to  be  shown, 
in  order  to  maintain  this  action,  is  not  necessarily  revenge, 
or  other  base  and  malignant  passion.  Whatever  is  done  wil- 
fully and  purposely,  if  it  be  at  the  same  time  wrong  and 
unlawful,  and  that  known  to  the  party,  is,  in  legal  contem- 
plation, malicious.'  {Wills  v.  Noyes,  12  Pick.  324.)"  Pul- 
len.  V.  Glidden,  C6  Me.  202,  204. 

Malice,  but  not  want  of  probable  cause,  may  be  inferred. — 

"  Proof  of  malice  will  not  excuse  or  supply  the  want  of  proof 
of  want  of  probable  cause,  neither  can  the  want  of  probablo 
cause  be  inferred  from  proof  of  malice,  although  malice  may 
be  inferred  from  the  want  of  probable  cause."  Ileyne  v. 
Blair,  G2  X.  Y.  19,  22. 

"  Unless  the  evidence  .  .  .  given  to  establish  tho 
want  of  probable  cause,  justify  the  inference  of  malice,  other 
evidence,  in  support  of  it,  must  bo  given."  Vanderhilt  v. 
Mathis,  5  Duer,  304,  307. 

Malice  and  Vv^ant  of  probable  cause  must  concur. — "  To 

maintain  this  action  it  was  incumbent  on  the  plaintiff  to  prove 
that  he  had  been  sued  by  the  defendant,   as  alleged,  ma- 


Malicious  Prosecution.  149 

liciously  and  without  probable  cause ;  for  if  there  was  prob- 
able cause  for  such  suit,  although  it  was  maliciously  com- 
menced, the  action  could  not  be  sustained.  Want  of  probable 
cause  and  malice  must  concur."  Besson  v.  Southard,  10 
N.  Y.  236,  239. 

Probable  cause  a  question  of  law.  Malice  a  question  of 
fact.—  ''  The  question  of  malice  in  this  action  is  for  the  jury. 
The  want  of  probable  cause  is  independent  of  malicious 
motive,  and  cannot  be  inferred,  as  a  necessary  consequence, 
from  any  degree  of  malice  which  may  be  shown. 

"  In  the  case  of  a  private  suit,  probable  cause  may  consist 
of  such  facts  and  circumstances  as  lead  to  the  inference  that 
the  party  was  actuated  by  an  honest  and  reasonable  convic- 
tion of  the  justice  of  the  suit.  This  question  is  composed  of 
law  and  fact ;  it  being  the  province  of  the  jury  to  determine 
whether  the  circumstances  alleged  are  true  or  not,  and  of  the 
court  to  determine  whether  they  amount  to  probable  cause. 
When  the  matter  of  fact  and  matter  of  law,  of  which  tha 
probable  cause  consists,  are  so  intimately  blended  together  as 
not  to  be  easily  susceptible  of  separate  decision,  the  judge  is 
warranted  in  leaving  the  question  to  the  jury;  instructing 
them  in  the  principles  and  rules  of  law  by  which  they  are  to 
be  governed  in  finding  a  verdict,  and  those  instructions  the 
jury  are  bound  to  follow.  Whether  the  circumstances  al- 
leged to  show  probable  cause,  or  the  contrary,  are  true  and 
existed,  is  a  matter  of  fact;  but  whether,  supposing  them 
true,  they  amount  to  probable  cause,  is  a  question  of  law. 

"  What  is  meant  by  the  expression,  that  probable  cause  is 
a  mixed  question  of  law  and  fact,  and  when  it  is  proper  to 
submit  it  to  the  jury  to  pass  upon,  is  correctly  explained  in 
Masten  v.  Deyo,  2  Wend.  424.  If  the  facts  which  are  ad- 
duced as  proof  of  a  want  of  probable  cause  are  controverted, 
if  conflicting  testimony  is  to  be  weighed,  or  if  the  credibility 
of  witnesses  is  to  be  passed  upon,  the  question  of  probable 
cause  should  go  to  the  jury,  with  proper  instructions  as  to  the 
law\    But  where  there  is  no  dispute  about  facts,  it  is  the  duty 


150  Malicious  Prosecution. 

of  the  court,  on  the  trial,  to  apply  the  law  to  them."  Besson 
V.  Southard,  10  N.  Y.  236,  239.  See,  also,  Ileyne  v.  Blair. 
62  N.  Y.  19,  22 ;  Fagnan  v.  Knox,  66  N.  Y.  525,  527 ;  Wass 
V.  Stephens,  128  K  Y.  123,  127. 

"  The  existence  of  malice  is  always  a  question  exclusively 
for  the  jury.  It  must  bo  found  by  them,  or  the  action  can- 
not be  sustained.  Hence  it  must  always  be  submitted  to  them 
to  find  whether  it  existed.  The  court  has  no  right  to  find  it, 
nor  to  instruct  the  jury  that  they  may  return  a  verdict  for 
the  plaintiff  without  it.  Even  the  inference  of  malice  from 
the  want  of  probable  cause  is  one  which  the  jury  alone  can 
draw."     Stewart  v.  Somiehorn,  98  U.  S.  187,  193. 

Abuse  of  process. — "  There  is  no  doubt  that  an  action  lies 
for  the  malicious  abuse  of  lawful  process,  civil  or  criminal. 
It  is  to  be  assumed,  in  such  a  case,  that  the  process  was  law- 
fully issued  for  a  just  cause,  and  is  valid  in  form,  and  that 
the  arrest  or  other  proceeding  upon  the  process  was  justifi- 
able and  proper  in  its  inception.  But  the  grievance  to  be 
redressed  arises  in  consequence  of  subsequent  j^roceedings. 
For  example,  if  after  an  arrest  upon  civil  or  criminal  process 
the  person  arrested  is  subjected  to  unwarrantable  insults  and 
indignities,  is  treated  with  cruelty,  is  deprived  of  proper 
food,  or  is  otherwise  treated  with  oppression  and  undue  hard- 
ship, he  has  a  remedy  by  an  action  against  the  ofticer,  and 
against  others  who  may  unite  with  the  officer  in  doing  the 
wrong."     ^Yood  v.  (graves,  144  Mass.  365,  366. 

"  It  has  been  repeatedly  held  by  the  courts  of  this  and 
most  of  the  other  States  of  the  Union,  that  a  civil  action  may 
be  maintained  to  recover  the  damages  sustained  by  the  abuse 
or  misuse  of  the  process  of  the  court.  As  where  a  party 
wrongfully  and  wilfully  sues  out  an  execution  on  a  judgment 
which  he  knows  has  been  paid  and  satisfied,  and  whereby  tho 
property  of  the  defendant  is  taken  and  sold.  {Brown  v. 
Feeier,  7  Wend.  301.)  Entering  up  a  judgment  and  suing 
out  execution  for  a  claim  already  satisfied.  {Barneit  v. 
Reed,  51  Penn.  St.  190.)      Suing  out  an  attachment  for  an 


Malicious  Prosecutiois.  151 

amount  greatly  in  excess  of  the  debt.  (Savage  v.  Brewer, 
16  Pick.  453.)  Causing  an  arrest  for  more  than  is  due. 
(Jenings  v  Florence,  2  C.  B.  [N.  S.]  467.)  Levying  an 
execution  for  an  excessive  amount.  {Sommer  v.  Wilt,  4  S.  & 
R.  19.)  Causing  an  arrest  when  a  party  cannot  procure 
bail,  and  keeping  him  imprisoned  until  he  is  compelled  to 
surrender  property  to  which  the  other  is  not  entitled. 
(Grainger  v.  Hill,  4  Bing.  jST.  C.  212.)  Where  a  person  is 
induced  by  fraud  to  come  into  the  jurisdiction  of  the  court 
and  is  then  sued,  although  upon  a  perfectly  valid  cause  of 
action.  (Blade  v.  Joseph,  5  Daly,  187.)  Where  service  of 
process  is  accomplished  by  unlawfully  breaking  into  a  dwell- 
ing house,  although  the  party  at  whose  instance  the  service 
was  made  has  a  good  cause  of  action  against  the  person 
served.  (People  v.  Huhhard,  24  Wend.  369.)"  Paid  v. 
Fargo,  84  App.  Div.  9,  14. 

Termination  not  a  condition  precedent. — "The  action  here 
under  review  is  not  one  for  false  imprisonment,  malicious 
prosecution,  or  the  special  action  authorized  by  section  1900 
of  the  Code  of  Civil  Procedure,  although  it  possesses  some 
of  the  features  of  each  of  those  actions ;  it  is  one  I  think  for 
an  abuse  of  process,  something  rarely  brought  to  the  attention 
of  the  courts,  except  in  connection  with  actions  for  false  im- 
prisonment or  malicious  prosecution,  but  for  which  a  separate 
action  will  lie, 

"  The  leading  English  case  upon  the  subject  is  that  of 
Grainger  v.  Hill,  4  Bing.  N.  C.  212,  w^here  the  owner  of  a 
vessel  was  arrested  on  civil  process,  and  the  officer,  acting 
under  the  direction  of  the  plaintiffs  in  the  suit,  used  the  proc- 
ess to  compel  the  defendant  therein  to  give  up  his  ship  regis- 
ter, to  which  they  had  no  right.  He  was  held  entitled  to 
recover  damages,  not  for  maliciously  putting  the  process  in 
force,  but  for  maliciously  abusing  it  to  effect  an  object  not 
within  its  proper  scope. 

********* 


152  Malicious  Prosecution. 

"  It  is  not  necessary,  as  in  cases  of  malicious  prosecution, 
to  allege  or  prove  that  the  proceeding  complained  of  has  been 
terminated."  Dishaiv  v.  \Yadleigh,  15  App.  Div.  205,  2.09, 
2  ID. 

The  complaint  in  malicious  prosecution  and  in  abuse  of 
process. — • "  In  an  action  for  malicious  prosecution  it  is  a 
part  of  the  cause  of  action  that  there  was  no  probable  cause 
for  the  prosecution,  and  that  its  institution  was  malicious ; 
consequently  these  facts  must  be  averred  and  proved. 
{Cousins  V.  Swords,  14  App.  Div.  338;  affd.  on  the  opinion 
below,  1G2  K  Y.  625.)  In  the  action  for  abuse  of  process 
the  gravamen  of  the  complaint  is  the  using  of  the  process  for 
a  purpose  not  justified  by  law,  and  to  effect  an  object  not 
within  its  proper  scope;  and  in  such  action  the  facts,  may 
appear  from  which  is  f airly^educible  the  inference  of  wrong- 
ful and  malicious  use,  and  the  pleading  is  sufficient  if  it  aver 
facts  out  of  which  the  inference  arises."  Foy  v.  Barry,  87 
App.  Div.  291,  294. 

Abuse  of  process  distinguished  from  malicious  prosecu- 
tion.—  "  Though  there  is  a  resemblance  betwixt  an  action  for 
the  malicious  prosecution  of  a  criminal  charge,  and  an  action 
for  a  malicious  arrest  or  holding  to  excessive  bail  in  a  suit, 
the  cases  are  not  entirely  parallel.  In  a  criminal  prosecution, 
want  of  probable  cause  must  be  combined  with  malice;  but 
in  a  civil  suit  the  existence  of  a  cause  of  action  is  not  a 
defense  to  a  suit  for  an  excessive  use  of  the  process.  .  .  . 
The  gist  of  the  action,  in  the  one  case,  is  the  origination  of  a 
malicious  and  groundless  prosecution,  which  ipso  facto  put 
the  party  in  peril ;  in  the  other,  it  is  not  the  origination  of  an 
action,  but  an  abuse  of  the  process  consequent  on  it."  Her- 
man V.  Brookerhoff,  8  Watts,  210,  241. 

"  There  is  a  distinction  between  a  malicious  use  and  a 
malicious  abuse  of  legal  process.  An  abuse  is  wliere  the  party 
employs  it  for  some  unlawful  object,  not  the  purpose  which 
it  is  intended  by  the  law  to  effect ;  in  other  w^ords,  a  perver- 
sion of  it.  Thus,  if  a  man  is  arrested,  or  his  goods  seized  in 
order  to  extort  money  from  him,  even  though  it  be  to  pay  a 


Malicious  Prosecution.  153 

just  claim  other  than  that  in  suit,  or  to  compel  him  to  give 
up  possession  of  a  deed  ot  other  thing  of  value,  not  the  legal 
object  of  the  process,  it  is  settled  that  in  an  action  for  such 
malicious  abuse  it  is  not  necessary  to  prove  that  the  action  in 
which  the  process  issued  has  been  determined,  or  to  aver 
that  it  was  sued  out  without  reasonable  or  probable  cause : 
Grainer  v.  Hill,  4  Bing.  ]^.  C.  212.  It  is  evident  that 
when  such  a  wrong  has  been  perpetrated,  it  is  entirely  imma- 
terial whether  the  proceeding  itself  was  baseless  or  other- 
wise. 

"  On  the  other  hand,  legal  process,  civil  or  criminal,  may 
be  maliciously  used  so  as  to  give  rise  to  a  cause  of  action 
where  no  object  is  contemplated  to  be  gained  by  it  other  than 
its  proper  effect  and  execution.  As  every  man  has  a  legal 
power  to  prosecute  his  claims  in  a  court  of  law  and  justice, 
no  matter  by  what  motives  of  malice  he  may  be  actuated  in 
doing  so,  it  is  necessary  in  this  class  of  cases  to  aver  and  prove 
that  he  has  acted  not  only  maliciously,  but  without  reasonable 
or  probable  cause.  It  is  clearly  settled  also,  that  the  pro- 
ceeding must  be  determined  finally  before  any  action  lies  for 
the  injury;  because,  as  it  is  said  in  Arundell  v.  Tregono, 
Yelv.  117,  the  plaintiff  will  clear  himself  too  soon,  viz., 
before  the  fact  tried,  which  will  be  inconvenient ;  besides, 
the  two  determinations  might  be  contrary  and  inconsistent." 
Mayer  v.  Walter,  6-1  Pa.  St.  283,  285. 

Malicious  prosecution  in  civil  actions. — "  The  authorities 
are  in  conflict  as  to  whether  a  petition  states  a  cause  of  action 
which  merely  alleges  that  a  civil  action  brought  and  prose- 
cuted maliciously,  and  without  probable  cause,  has  been  ter- 
minated in  favor  of  the  defendant,  many  of  the  authorities 
maintaining  that  no  cause  of  action  exists  unless  such  civil 
process  be  accompanied  by  arrest  of  the  person  or  seizure 
of  the  property ;  and  that  the  plaintiff  in  such  original  action 
in  contemplation  of  law  is  sufiiciently  punished  by  the  pay- 
ment of  costs. 

"  .  .  .  It  is  difficult  to  see  why  the  right  of  a  plaintiff 
who  as  defendant  has  been  sued  in  a  civil  action  maliciouslv 


154  Malicious  Pkosecution. 

and  without  probable  cause,  and  who  has  been  put  to  great 
expense  in  consequence  thereof,  should  be  altered  or  at  all 
affected  merely  by  ihe  incident  of  his  property  having  been 
attached  or  his  person  seized ;  .  .  .  And  it  is  clear  that 
the  recovery  of  costs  would  not,  under  our  practice,  reimburse 
him  for  his  attorney's  fees,  something  which  and  other  inci- 
dental expenses,  he  does  recover  under  the  English  practice." 
Smilh  V.  Burrus,  106  Mo.  94,  98. 

"  la  Savile  v.  Boherts,  1  Ld.  Raym.  374,  Lord  Holt  laid 
down  the  proposition  that  any  one  of  three  sorts  of  damage 
would  supjoort  an  action  for  malicious  prosecution,  namely, 
damage  to  a  man's  fame,  to  his  person,  or  to  his  property. 
That  a  prosecution  for  a  crime,  which  involves  the  first  sort 
of  damage,  the  bringing  of  a  civil  suit  with  arrest  of  the  per- 
son, which  involves  the  second,  and  the  bringing  of  a  civil 
suit  with  attachment  of  property,  which  involves  the  third, 
are  actionable  if  induced  by  malice  and  without  reasonable 
cause,  is  universally  admitted.  But  where  a  civil  suit  is 
unaccompanied  by  arrest  of  the  defendant's  person,  or  attach- 
ment of  his  property,  it  has  often,  perhaps  generally,  been 
held  that  the  law  must  regard  the  costs  which  the  defendant 
recovers  as  a  sufficient  recompense,  and  that  he  can  bring  no 
action  for  malicious  prosecution. 

"  It  is  generally  admitted  that  some  action  of  this  nature 
lay  at  common  law.  But  since  the  statute  of  Marlbridge 
(52  Hen.  III.),  which  allowed  costs  to  successful  defendants 
pro  [also  clamore,  no  such  action  has  been  sustained  by  the 
English  courts.  Those  costs  apparently  include  '  the  attor- 
ney's charges  for  preparing  the  case  for  trial  in  all  its  parts, 
the  fees  of  the  witnesses  and  the  court  officials,  and  even  the 
honorarium  of  the  barrister  who  conducted  the  case  in  court.' 
21  Am.  Law  Reg.  N.  S.  370.  In  this  country  costs  are  much 
more  sparingly  allowed,  and  are  often  far  from  a  recompense 
for  the  damage  sustained.  It  is  on  this  ground  that  many 
of  the  American  courts  have  allowed  the  action.  Their  con- 
clusion certainly  seems  logical,  and  in  accord  with  the  gen- 
eral principle  on  which  the  action  for  malicious  prosecution 


Malicious  Prosecution.  155 

is  based.  Manifestly,  in  the  expense  to  which  he  is  put  the 
defendant  suffers  damage  of  a  sort  covered  by  Lord  Holt's 
analysis;  and  if  that  damage,  resulting  as  a  natural  conse- 
quence of  the  plaintiff's  malicious  act,  exceeds  the  amount  of 
costs  given  under  a  system  which  makes  no  attempt  at  com- 
plete compensation,  the  defendant  should  be  allowed  to  make 
good  the  loss  by  another  action.  The  main  argument  against 
allowing  it,  that  it  would  encourage  interminable  litigation, 
hardly  seems  conclusive.  See,  for  a  full  discussion  of  the 
subject,  21  Am.  Law  Eeg.  K  S.  281,  353."  IX.  Harvard 
Law  Review,  538. 

"  A  party  who  brings  an  action  for  malicious  prosecution 
again-t  a  plaintiff  who  has  been  unsuccessful  in  a  civil  action, 
should  not  be  permitted  to  recover  without  very  clear  and 
satisfactory  proof  of  all  the  fundamental  facts  constituting 
his  case.     Such  actions  should  not  be  encouraged. 

"  The  costs  awarded  to  a  successful  defendant  in  a  civil 
action  are  the  indemnity  Avliicli  the  law  gives  him  for  a 
groundless  prosecution.  Public  policy  requires  that  parties 
may  freely  enter  the  courts  to  settle  their  grievances,  and 
that  they  may  do  this  without  imminent  exposure  to  a  suit 
for  damages  in  case  of  an  adverse  decision  by  judge  or  jury." 
Fergusoriv.  Arnow,  142  ]ST.  Y.  580,  583. 

"  In  this  country  the  authorities  are  not  agreed  upon  the 
doctrine  governing  such  actions ;  as  may  be  seen  by  reference 
to  the  cases  collated  in  the  x\merican  and  English  Encyclop. 
of  Law  (Vol.  14,  p.  32).  But  I  am  prepared  to  assume  that 
there  may  be  satisfactory  authority  fnr  holding  that  wdiere  a 
party  has  been  subjected  to  some  special,  or  added,  grievance, 
as  by  an  interference  with  his  person,  or  property,  in  a  civil 
action,  brought  without  probable  cause,  he  may  maintain  a 
subsequent  action  to  recover  any  legal  damage,  which  he 
avers,  and  is  able  to  show,  to  have  been  occasioned  to  him. 
The  action  generally  is  not  to  be  viewed  with  any 
favor ;  for,  in  theory  of  law,  the  costs  awarded  by  the  statute 
to  the  successful  defendant  are  an  adequate  compensation  to 
him  for  all  damages."  Willard  v.  Holmes,  142  N.  Y.  492, 
495.     See,  also,  Paul  v.  Fargo,  84  App.  Div.  9,  11. 


156  Tkespass. 

Distinction  between  false  imprisonment  and  malicious 
prosecution. —  In  false  imprisounient,  the  gist  of  tlie  action  is 
imlawinl  detention.  Mot©  must  be  pFOved  in  an  action  for 
malicious  pi-osecution.  In  an  action  for  false  imprisonmenr, 
the  plaintifl"  need  not  establish  malice  or  want  of  probable 
cause.  These  elements  may  affect  exemplary  damages,  but 
not  the  right  of  action. 

"  The  distinction  between  false  imprisonment  and  malicious 
prosecution  is  well  illustrated  by  the  case  where,  parties 
being  before  a  magisti-ate,  one  makes-  a  charge  against 
another,  whereupon  the  magistrate  orders  the  person  charged 
to  be  taken  into  custody  and  detained  until  the  matter  can 
be  investigated.  The  party  making  the  charge  is  not  liable 
to  an  action  for  false  imprisonment,  because  he  does  not  set 
a  ministerial  officer  in  motion,  but  a  judicial  ofHcer.  The 
opinion  and  the  judgment  of  a  judicial  officer  are  interposed 
between  the  charge  and  the  imprisonment."  Austin  v. 
Dawling,  L.  R  5  C.  P.  5-iO. 

"  An  action  for  malicious  prosecution  can  only  be  sup- 
ported for  the  malicious  prosecution  of  some  legal  proceed- 
ing, before  some  judicial  officer  or  tribunal.  If  the  pro- 
ceedings commenced  are  extra-judicial,  the  remedy  is 
trespass,  and  not  an  action  on  the  case  for  malicious  prosecu- 
tion."    Turpin.  v.  Bemy,  3  Black,  210. 


TRESPASS 


Duty  regarding  property. — One  of  the  three  principal 
duties  with  which  the  law  of  torts  is  concerned,  is  the  duty 
to  respect  the  propei'ty  of  others.  The  common  law  recog- 
nized this  duty  as  absolute,  but  based  its  remedies  for  viola- 
tion upon  possession  rather  than  ownership. 

Common-law  rights  and  remedies  possessory. —  At  com- 
moTL  law^,  "  the  forms  of  action  brought  not  Ownership  but 
Possession  to  th-e  front  in  accordance  with  a  habit  of  thought 


Teespass.  157 

whicli,  strange  as  it  may  now  seem  to  us,  found  the  utmost 
difficulty  in  conceiving  rights  of  property  as  having  full  ex- 
istejice  or  being  capable  of  transfer  and  succession  unless  in. 
close  connexion  with  the  physical  control  of  something  which 
could  be  passed  from  hand  to  hand,  or  at  least  a  part  of  it 
delivered  in  the  name  of  the  whole.  An  ov.Tier  in  possession 
was  protected  against  disturbance,  but  the  rights  of  an  owner 
out  of  possession  were  obscure  and  weak.  .  .  .  An 
owner  who  had  neither  possessioji  nor  the  immediate  right 
to  possession  could  redress  himself  by  a  special  action  on  the 
case,  which  did  not  acquire  any  technical  name."  Pollock 
on  Torts  (7th  ed.),  334. 

Trespass  defined. —  '^  Trespass,  in  its  strict  and  technical 
sense,  is  a  wrongful  entry  upon  or  taking  of  real  or  personal 
property,  of  a  corporeal  and  tangible  nature."  Hilliard  on 
ToTts,  II.,  71. 

"  Trespass,  in  its  largest  and  most  extensive  sense,  signi- 
fies any  transgression  or  offense  against  the  law  of  nature, 
of  society,  or  of  the  country  in  which  we  live;  whetlier  it 
relates  to  a  man's  person,  or  his  property.  Therefore  beating 
another  is  a  trespass ;  for  which  ...  an  action  of  tres- 
pass vi  et  armis  in  assault  and  battery  will  lie ;  taking  or 
detaining  a  man's  goods  are  respectively  trespasses;  for 
which  an  action  of  ti'espass  vi  et  armis,  or  on  the  case  in 
troTer  and  conversion,  is  giTcn  by  the  law ;  ,  .  .  and,  in 
general,  any  misfeasance,  or  act  of  one  man  whereby  another 
is  injuriously  treated  or  damnified,  is  a  transgression  or 
tresjiass  in  its  largest  sense ;  for  which  .  .  .  whenever 
the  act  itself  is  dii"eetly  and  immediately  injurious  to  the 
person  or  property  of  another,  and  therefore  necessarily  ac- 
companied with  some  force,  an  action  of  trespass  vi  et  armis 
will  lie;  but,  if  the  injury  is  only  consequential,  a  special 
action  of  trespass  on  the  case  may  be  brought. 

"  But  in  the  limited  and  confined  sense  ...  it  signi- 
fies no  more  than  an  entry  on  another  man's  ground  without 
a  lawful  authority,  and  doing  some  damage,  however  in^e^on- 
siderable,  to  his  real  property.     For  the  right  of  vievm  and 


158  Trespass. 

tuum,  or  property  in  lands,  being  once  established,  it  follows 
as  a  necessary  consequence,  that  this  right  must  be  exclusive ; 
that  is,  that  the  owner  may  retain  to  himself  the  sole  use  and 
occupation  of  his  soil ;  every  entry  therefore  thereon,  without 
the  o^\Tier's  leave,  and  especially  if  contrary  to  his  express 
order,  is  a  trespass  or  transgression."  3  Blackstone  Com. 
208. 

"  Trespass  may  be  conmiitted  by  various  kinds  of  acts  of 
which  the  most  obvious  are  entry  on  another's  land  (trespass 
quarc  clausum  frcgii),  and  taking  another's  goods  (trespass 
de  bonis  asportatis).  Notwithstanding  that  trespasses  pun- 
ishable in  the  king's  court  were  said  to  be  vi  et  armis,  and 
were  supposed  to  be  punishable  as  a  breach  of  the  king's 
peace,  neither  the  use  of  force,  nor  the  breaking  of  an 
enclosure  or  transgression  of  a  visible  boundary,  nor  even  an 
unlawful  intention,  is  necessary  to  constitute  an  actionable 
trespass.  It  is  likewise  immaterial,  in  strictness  of  law, 
whether  there  be  any  actual  damage  or  not.  '  Every  in- 
vasion of  private  property,  be  it  ever  so  minute,  is  a  tres- 
pass.' "    Pollock  on  Torts"  (7th  ed.),  339. 

Trespass  upon  land. —  "  To  maintain  trespass  quare  clau- 
sum frcglt,  the  plaintiff  must  have  the  actual  or  constructive 
possession  of  the  premises.  The  gist  of  the  action  is  the  in- 
jury to  the  possession.  If  the  premises  are  occupied,  the 
action  must  be  brought  by  the  party  in  possession ;  if  unoc- 
cupied, by  the  party  having  the  title  and  the  right  to  the 
possession.  Tlic  oA\nior  cannot  maintain  the  action  where  the 
land  is  in  the  occupancy  of  his  tenant.  The  trespass  is  a  dis- 
turbance of  the  tenant's  possession  and  he  alone  can  bring 
the  action."  Halliganv.  Chicago  &  B.  I.  E.  Co.,  15  111.  558, 
560. 

Constructive  possession. —  Action  of  trespass,  alleged  to 
have  been  committed  on  lots  107  and  108,  in  a  patent  of  land 
known  as  "  Glenn's  patent." 


Trespass.  159 

"  Only  a  small  portion  of  each  lot  was  cleared,  and  the 
plaintiff  had  occupied  and  cultivated  the  cleared  portions 
for  many  years ;  the  balance,  the  larger  part  of  each  lot,  was 
uninclosed  woodland.  It  was  upon  this  part  that  the  alleged 
trespasses  were  committed.  As  the  plaintiff  was  not  in  the 
actual  possession  of  the  uninclosed  woodland,  he  could  re- 
cover only  by  showing  a  valid  title  or  constructive  pos- 
session. To  show  a  valid  title,  he  should  have  proved  a  con- 
veyance to  him  sufficient  to  vest  in  him  such  a  title.  To  show 
constructive  possession,  without  a  valid  title,  he  should  have 
proved  that  he  claimed  title  to  the  whole  lot  under  a  written 
instrument  which  purported  to  give  him  title  to  the  whole, 
and  was,  therefore,  sufficient  to  give  him  color  of  title  to  the 
whole,  and  that  he  was  in  the  actual  possession  of  a  part." 
Edwards  v.  Noyes,  65  I^.  Y.  125,  126. 

The  enclosure. —  "Every  entry  upon  land  in  the  occupa- 
tion or  possession  of  another  constitutes  a  trespass,  in  respect 
of  which  an  action  for  damages  is  maintainable,  imless  the 
act  can  be  justified.  If  a  man's  land  is  not  surrounded  by 
any  actual  fence,  the  law  encircles  it  with  an  imaginary  en- 
closure, to  pass  which  is  to  break  and  enter  his  close.  The 
mere  act  of  breaking  through  this  imaginary  boundary  con- 
stitutes a  cause  of  action,  as  being  a  violation  of  the  right 
of  property,  although  no  actual  damage  may  be  done."  Ad- 
dison on  Torts,  360. 

Justifiable  entry. — '^An  entry  upon  land,  or  a  taking  of 
goods,  is  justifiable  when  effected  either  (1)  by  license  or 
consent  of  the  party,  or  (2)  by  license  of  the  law;  a  license 
being  a  mere  permission  to  do  what  would  otherwise  be  un- 
lawful, and  not  a  property  right.  The  term  '  license  or  con- 
sent of  the  party,'  as  here  used,  has  reference  to  cases  in 
which  there  is  nothing  beyond  an  actual  consent,  either  in 
answer  to  a  request  for  permission,  or  by  specific  or  general 
invitation  by  the  possessor;  as  e.  g.  in  the  case  of  a  shop- 
keeper.     .      .      .     The  term  '  license  of  the  law  '  has  refer- 


loO  Trespass. 

ence  to  cases  in  which  a  permission  is  given  regardless  of 
the  will  of  the  owner  or  occupant,  including  cases  in  which, 
in  point  of  fact,  there  mav  at  the  same  time  be  a  license  of 
the  party,  as  for  instance  the  case  of  an  innkeeper  who  both 
invites  and,  generally  speaking,  must  receive  guests ;  enough 
that  the  license  is  paramount  to  the  will  of  such  person." 
Bigelow  on  Torts  (Tth  ed.),  237. 

''  The  right  to  land  is  exclusive;  and  every  entry  thereon, 
without  the  owner's  leave,  or  the  license  or  authority  of  law, 
is  a  trespass.  (3  Bl.  Com.  209;  18  John.  385.)  There  is 
a  variety  of  cases  w^here  an  authority  to  enter  is  given  by 
law ;  as  to  execute  legal  process ;  to  distrain  for  rent ;  to  a 
landlord  or  reversioner,  to  see  that  his  tenant  does  no  waste, 
and  keeps  the  premises  in  repair  according  to  his  covenant 
or  promise ;  to  a  creditor,  to  demand  money  payable  there ; 
or  to  a  person  entering  an  inn  for  the  purpose  of  getting  re- 
freshment there.  (3  Black.  Com.  212  ;  1  Cowen^s  Tr.  411.) 
In  some  cases,  a  license  will  be  implied ;  as  if  a  man  make 
a  lease,  reserving  the  trees,  he  has  a  right  to  enter  and  show 
them  to  the  purchaser.  (10  Co.  46.)  Where  the  owner  of 
the  soil  sells  the  chattel  being  on  his  land.  As  if  he  sell  a 
tree,  a  crop,  a  horse,  or  a  fanning  mill,  which  remain  within 
his  close ;  lie  at  the  same  time  passes  to  the  vendee,  as  in- 
cident to  such  sale,  a  right  to  go  upon  the  premises  and  take 
away  the  subject  of  his  purchase,  without  being  adjudged  a 
trespasser.  (1  Cowen's  Tr.  307;  Bac.  Abr.  Trespass  F; 
11  East,  366;  2  Eoll.  Abr.  507  m.  n.  1.)  .  .  .  In 
some  cases,  the  motive  will  excuse  the  entry.  If  J.  S.  go 
into  the  close  of  J.  X.  to  succor  the  beast  of  J.  N.,  the  life 
of  which  is  in  danger,  an  action  of  trespass  will  not  lie; 
because,  as  the  loss  of  J.  N.,  if  the  beast  had  died,  would 
have  been  irremediable,  the  doing  of  this  is  lawful.  But  if 
J.  S.  go  into  the  close  of  J.  N.  to  prevent  the  beast  of  J.  N. 
from  being  stolen,  or  to  prevent  his  com  from  being  con- 
sumed by  hogs,  or  spoiled,  the  action  of  trespass  lies;  for 
the  loss,  if  either  of  those  things  had  happened,  would  not 


Trespass.  161 

have  been  irremediable.  (Bac.  Abr.  Trespass  F.)  And  if  a 
stranger  chase  the  beast  of  A,,  which  is  damage  feasant 
therein,  ont  of  the  close  of  B.,  trespass  will  lie;  for  by  doing 
this,  although  it  seem  to  be  for  his  benefit,  B.  is  deprived  of 
his  right  to  distrain  the  beast.  (Bro.  Tresp.  pi.  421 ;  Keilw. 
46,  13.) 

''  In  some  cases  the  entry  will  be  excused  by  necessity. 
As  if  a  public  highway  is  impassable,  a  traveler  may  go  over 
the  adjoining  land.  (2  Show.  28;  Lev.  234;  1  Ld.  Eaym. 
725.)  .  .  .  So  if  a  man  who  is  assaulted,  and  in  danger 
of  his  life,  run  through  the  close  of  another,  trespass  will 
not  lie,  because  it  is  necessary  for  the  preservation  of  his 
life.  (Year  Book,  37  H.  6,  37,  pi.  26.)  If  my  tree  be 
blown  down  and  fall  on  the  land  of  my  neighbor,  I  may 
go  on  and  take  it  away.  (Bro.  Tres.  pi.  213.)  And  the  same 
rule  prevails  where  fruit  falls  on  the  land  of  another.  {Mil- 
ler V.  F  aw  dry,  Latch.  120.)  But  if  the  owner  of  a  tree  cut 
the  loppings  so  that  they  fall  on  another's  land,  he  cannot 
be  excused  for  entering  to  take  them  away,  on  the  ground 
of  necessity,  because  he  might  have  prevented  it.  (Bac.  Abr. 
Trespass  F.) 

"...  But  it  is  well  settled  that  where  there  is  neither 
an  express  nor  an  implied  license,  nor  any  such  legal  ex- 
cuse as  is  above  stated,  a  man  has  no  right  to  enter  upon 
the  land  of  another  for  the  purpose  of  taking  away  a  chat- 
tel being  there,  which  belongs  to  the  former.  The  mere 
fact  that  the  plaintiff  owns  the  chattel,  gives  him  no  au- 
thority to  go  upon  the  land  of  another  to  get  it."  Newhirh 
V.  SaUer,  9  Barb.  652,  654. 

Not  an  action  to  try  title. —  "At  common  law,  it  is  not 
properly  an  action  to  try  titles,  and  the  question  of  title 
does  not  necessarily  arise.  It  may,  however,  and  often  does, 
where  the  real  ownership  is  in  dispute,  and  it  becomes  ma- 
terial to  show  in  whom  the  rightful  possession  is.  .  .  . 
But  where  the  matter  is  not  regulated  by  statute,  the  decision 
of  an  action  of  trespass  settles  nothing  in  regard  to  the  title 
11 


162  Trespass. 

beyond  the  action  tried."  Chandler  v.  Walker,  21  N.  H. 
282,  285. 

"  This  action  was  originally  brought  by  the  plaintiff's 
testator,  .  .  .  ,  to  recover  damages  in  the  sum  of  $55 
for  an  alleged  trespass  by  the  defendant  upon  the  plaintiff's 
land. 

" ,  .  .  The  defendant  made  no  claim  of  title  to  any 
part  of  the  land  which  the  plaintiff  alleged  that  he  owned. 
.  The  general  denial  in  the  answer  put  in  issue  only 
the  fact  of  plaintiff's  possession  and  a  wrongful  entry  by 
the  defendant.  It  did  not  necessarily  raise  any  issue  with 
respect  to  the  title  to  land.  The  action  involved  no  ques- 
tion save  that  which  the  ordinary  action  of  trespass  always 
involves,  namely,  an  injury  to  the  plaintiff's  possession. 
A  general  denial  to  the  complaint  which  avers 
possession  or  ownership  or  both  in  the  plaintiff,  and  a  wrong- 
ful entry  by  the  defendant  does  not  necessarily  put  the 
plaintiff  to  proof  of  title  or  require  such  proof  from  the  de- 
fendant. An  action  based  upon  such  pleadings  is  generally 
possessory  in  its  nature,  and  may  be  tried  and  determined 
irrespective  of  any  question  of  title."  La  Rue  v.  Smith, 
153  N.  Y.  428,  429. 

Trespass  ab  initio. —  "  It  was  decided  in  The  Six  Carpen- 
ters' Case,  4  Co.  290,  that  where  an  authority  to  enter  upon 
the  premises  of  another  is  given  hy  law,  and  it  is  subse- 
quently abused,  the  party  becomes  a  trespasser  ah  initio;  but 
where  such  authority  or  license  is  given  hy  the  party,  and 
it  is  subsequently  abused,  the  party  guilty  of  the  abuse  may 
be  punished,  but  he  is  not  a  trespasser;  and  the  reason  of 
the  difference  is  said  to  be,  that  in  case  of  a  license  by  law, 
the  subsequent  tortious  act  shows  quo  animo  he  entered ;  and 
having  entered  with  an  intent  to  abuse  the  authority  given 
by  law,  the  entry  is  unlawful;  but  where  the  authority  or 
license  is  given  by  the  party,  ho  cannot  punish  for  that  which 
was  done  by  his  own  authority.  Whether  this  is  not  a  dis- 
tinction without  a  difference  of  principle,  it  is  not  necessary 


Trespass,  IGo 

to  inquire.  A  better  reason  is  given  for  it  in  Bacon's  Abr. 
tit.  Trespass,  B.  Where  the  law  has  given  an  authority,  it  is 
reasonable  that  it  should  make  void  every  thing  done  by  the 
abuse  of  that  authority,  and  leave  the  abuser  as  if  he  had 
done  everything  without  authority.  But  where  a  man,  who 
was  under  no  necessity  to  give  an  authority,  does  so,  and 
the  person  receiving  the  authority  abuses  it,  there  is  no  rea- 
son why  the  law  should  interpose  to  make  void  everything 
done  by  such  abuse,  because  it  was  the  man's  folly  to  trust 
another  with  an  authority  who  was  not  fit  to  be  trusted  there- 
with." Allen  V.  Crofoot,  5  Wend.  506,^  509.  See,  also, 
Adams  v.  Rivers,  11  Barb.  390. 

Waste. —  Waste  is  an  injury  which  tends  to  destroy  or 
lessen  the  value  of  the  future  estate,  and  is  committed  or 
permitted  by  the  owner  of  the  present  estate.  It  differs 
from  trespass  in  its  being  committed  or  permitted  by  the 
person  actually  or  constructively  in  possession,  while  trespass 
is  committed  by  strangers  and  is  an  injury  to  the  possession 
itself. 

"  Section  1665  of  the  Code  of  Civil  Procedure  provides 
that: 

"  '  A  person,  seized  of  an  estate  in  remainder  or  reversion, 
may  maintain  an  action  founded  upon  an  injury  done  to 
the  inheritance,  notwithstanding  an  inter\'ening  estate  for 
life  or  for  years.' 

"  The  statute  provided  that  '  A  person,  seized  of  an  estate 
in  remainder  or  reversion,  may  maintain  an  action  of  waste 
or  trespass  for  an  injury  done  to  the  inheritance,  notwith- 
standing an  intervening  estate  for  life  or  years.'  (1  R.  S. 
759,  §  8.) 

"  Under  the  Code,  the  words  '  of  waste  or  trespass  for ' 
are  omitted,  and  the  words  '  founded  upon '  are  substituted 
in  their  place.  The  words  omitted,  as  used  in  the  statute, 
indicated  the  nature  of  the  action  that  might  be  maintained. 
The  leaving  of  them  out  of  the  Code  would  seem  to  indicate  an 
intention  not  to  restrict  the  party  injured  to  such  actions, 


le-l  Trespass, 

but  to  give  him  the  right  to  maintain  an  action  founded  upon 
an  injury  done  to  his  inheritance."  Thompson  v.  M.  R.  Co., 
130  N.  Y.  360,  364. 

Trespass  to  goods. —  Trespass  to  personal  property  is  also 
an  injury  to  the  right  of  possession,  and  intention  is  imma- 
terial. "  Trespass  to  goods  may  he  committed  by  taking  pos- 
session of  them,  or  by  any  other  act  'in  itself  immediately 
injurious  '  to  the  goods  in  respect  of  the  possessor's  interest, 
as  by  killing,  beating,  or  chastising  animals,  or  defacing  a 
work  of  art.  Where  the  possession  is  changed  the  trespass 
is  an  asportation  .  .  .  and  may  amount  to  the  oflPense 
of  theft.  Other  trespasses  to  goods  may  be  criminal  offenses 
under  the  head  of  malicious  injury  to  property."  Pollock 
on   Torts    (7th  ed.),   342. 

Trespass  to  the  person. —  In  the  case  of  Sullivan  v.  Dun- 
ham, IGl  X.  Y.  200,  the  court  held  that  one  who,  lawfully 
and  without  negligence  or  Avant  of  skill,  exploded  a  blast  on. 
his  own  land  and  caused  a  piece  of  wood  to  fall  upon  a  per- 
son lawfu.lly  in  a  public  highway,  was  liable  as  a  trespasser, 
and  that  it  was  not  incumbent  on  the  plaintiff  to  establish 
negligence  or  want  of  skill.  After  discussing  cases  of  tres- 
pass upon  lands,  the  court  at  p.  204  said :  "  These  were  cases 
of  trespass  upon  lands,  while  the  case  before  us  involves 
trespass  upon  the  person  of  a  human,  being,  when  she  was 
where  she  had  the  same  right  to  protection  from  injury  as 
if  she  had  been  walking  upon  her  ov;n  land.  As  the  safety 
of  the  person  is  more  sacred  than  the  safety  of  property,  the 
cases  cited  should  govern  our  decision  unless  they  are  no 
longer  the  law." 

And  at  page  300  the  court  concluded  thus :  "  We  think  the 
courts  below  were  right  in  holding  the  defendants  liable  as 
trespassers,  regardless  of  the  care  they  may  have  used  in 
doing  the  work.  The  action  was  a  direct  invasion  of  the 
rights  of  the  person  injured,  who  was  lawfully  in  a  publie 
highway,  which  was  a  safe  place  until  they  made  it  otherwise 
by  throwing  into  it  the  section  of  a  tree." 


Conversion.  165 

CONVEESIOX 

Defined. —  "  Conversion  is  defined  to  be  an  unauthorized 
assumption  and  exercise  of  the  right  of  ownership  over  goods 
belonging  to  another  to  the  exclusion  of  the  owner's  rights." 
Laverty  v.  Snethen,  68  N.  Y.  522,  52-i. 

"  To  constitute  a  conversion  of  goods  there  must  be  some 
repudiation  by  the  defendant  of  the  owner's  right,  or  some 
exercise  of  dominion  over  them  by  him  inconsistent  with 
such  right,  or  some  act  done  which  has  the  effect  of  destroy- 
ing or  changing  the  quality  of  the  chattel."  V^oodside  v. 
Adams,  40  K  J.  Law,  417,  431. 

Intention. — 'While  it  is  true  that  a  wrongful  intent  is  not 
an  essential  clement  in  a  conversion  (see  Boyce  v.  Brockway, 
31  Is.  Y.  400),  intention  may  be  material  in  those  cases 
where  the  act  itself  is  not,  in  law,  tantamount  to  an  asser- 
tion of  title  or  of  a  right  of  ownership,  for  the  purpose  of 
determining  whether  there  has  been  an  assumption  of  prop- 
erty or  an  exercise  of  dominion  over  the  thing  alleged  to  have 
been  converted. 

In  the  case  of  Pease  v.  Smith,  61  JST.  Y.  477,  the  defend- 
ants bought  the  goods,  for  which  they  were  sued  in  con- 
version, in  the  course  of  trade,  from  one  who  had  no  title, 
and  sold  them  before  any  claim  was  made  by  the  ovaiers. 
The  court  said  (p.  480)  :  "  This  exercise  of  an  act  of  owner- 
ship or  dominion  over  the  plaintiffs'  property,  assuming  to 
sell  and  dispose  of  it  as  their  ovai,  was,  within  reason  and 
the  authorities,  an  act  of  conversion  to  their  own  use.  The 
assumed  act  of  ownership  w^as  inconsistent  with  the  dominion 
of  the  plaintiffs,  and  this  is  of  the  essence  of  a  conversion. 
Knowdedge,  and  intent  on  the  part  of  the  defendants,  are 
not  material.  So  long  as  the  defendants  had  exercised  no 
act  of  ovmership  over  the  property,  and  had  acted  in  good 
faith,  a  demand  and  refusal  would  be  necessary  to  put  them 
in  the  wrong  and  to  constitute  conversion.  Until  such 
demand,  there  is  no  apparent  inconsistency  between  their 
possession  and  the  plaintiffs'  ovmership.  After  a  sale  has 
been  made  by  the  defendants,  they  have  assumed  to  be  the 


166  COXVEKSION. 

o^mcrs,  and  will  be  estopped  to  deny,  in  an  action  by  the 
lawful  owner,  the  natural  consequences  of  their  act,  and  to 
resist  an  action  for  the  value  of  the  goods." 

Exercise  of  dominion. —  In  conversion  the  exercise  of 
dominion  niav  be  the  result  of: 

(1)  A  wrongful  taking. 

(2)  An  illegal  use  or  misuse. 

(3)  A  WTongful  detention. 

"  Every  tortious  taking  with  intent  to  apply  chattels  to 
the  use  of  the  taker  or  some  other  person  than  the  owner  is 
a  conversion."     McPartland  v.  Bead,  11  Allen,  231,  232. 

''  Every  unauthorized  taking  of  personal  property,  and  all 
intermeddling  with  it,  beyond  the  extent  of  the  authority 
conferred,  in  case  a  limited  authority  has  been  given,  with 
intent  so  to  apply  and  dispose  of  it  as  to  alter  its  condition 
or  interfere  with  the  owner's  dominion,  is  a  conversion." 
Laverty  v.  Snethcn,  68  N".  Y.  522,  524. 

'*  Ordinarily,  when  one  person  has  the  chattel  of  another, 
it  is  his  duty  to  deliver  it  to  the  owner  or  his  agent  on 
demand,  and  if  he  refuses  to  do  so,  his  refusal  is  evidence 
of  a  conversion.  It  is,  however,  only  prima  facie  evidence 
and  may  be  explained,"  Singer  Manufacturing  Co.  v.  King, 
14  R.  I.  511,  512. 

For  whom  dominion  exercised,  is  immaterial. — "  It  is  not 
necessary  to  a  conversion,  that  there  should  be  a  manual 
taking  of  the  thing  in  question  by  the  defendant:  it  is  not 
necessary  that  it  should  be  shown,  that  he  has  applied  it  to 
his  own  use.  Does  he  exercise  a  dominion  over  it,  in  ex- 
clusion, or  in  defiance  of  the  plaintiff's  right?  If  he  does, 
that  is  in  law  a  conversion,  be  it  for  his  owm,  or  another 
person's  use."     Liptrot  v.  Holmes,  1  Ga.  381,  391. 

Acts  not  implying  assertion  of  title.— "Conversion  is  based 
upon  the  idea  of  an  assumption  by  the  defendant  of  a  right 
of  property  or  a  right  of  dominion  over  the  thing  converted, 
.     .     .     and    it    is    therefore    not    every    wronrful    inter- 


Conversion.  167 

meddling  with,  or  wrongful  asportation  or  wrongful  deten- 
tion, of  personal  property,  that  amounts  to  a  conversion. 
Acts  which  themselves  imply  an  assertion  of  title  or  of  a 
right  of  dominion  over  personal  property,  such  as  a  sale, 
letting  or  destruction  of  it,  amount  to  a  conversion,  even 
although  the  defendant  may  have  honestly  mistaken  his 
rights ;  but  acts  which  do  not  in  themselves  imply  an  asser- 
tion of  title,  or  of  a  right  of  dominion  over  such  property, 
will  not  sustain  an  action  of  trover,  unless  done  with  the 
intention  to  deprive  the  owner  of  it  permanently  or  tem- 
porarily, or  unless  there  has  been  a  demand  for  the  property 
and  a  neglect  or  refusal  to  deliver  it,  which  are  evidence  of  a 
conversion,  because  they  are  evidence  that  the  defendant  in 
withholding  it  claims  the  right  to  withhold  it,  which  is  a 
claim  of  a  right  of  dominion  over  it. 

"  .  .  .  Whether  an  act  involving  the  temporary  use, 
control  or  detention  of  property  implies  an  assertion  of  a 
right  of  dominion  over  it,  may  well  depend  upon  the  circum- 
stances of  the  case  and  the  intention  of  the  person  dealing  with 
the  property."    Spooner  v.  Manchester,  133  Mass.  270,  273. 

Asportation. — •  "It  is  not  every  interference  with  the 
property  of  another  which  constitutes  a  conversion.  One  per- 
son may  remove  the  property  of  another  person  from  one 
place  to  another  place,  without  being  guilty  of  a  conversion 
of  it  to  his  own  use.  He  may  do  it,  without  asserting  any 
claim  to  it,  for  the  benefit  of  the  owner,  and  admitting  his 
title  to  it."     Webber  v.  Davis,  4:4:  Me.  117,  152. 

"  It  is  a  proposition  familiar  to  all  lawyers,  that  a  simple 
asportation  of  a  chattel,  without  any  intention  of  making 
any  further  use  of  it,  although  it  may  be  a  sufficient  founda- 
tion for  an  action  of  trespass,  is  not  sufficient  to  establish  a 
conversion,  ...  In  order  to  constitute  a  conversion,  it 
is  necessary  either  that  the  party  taking  the  goods  should 
intend  some  use  to  be  made  of  them,  by  himself  or  by  thoso 
for  whom  he  acts,  or  that,  owing  to  his  act,  the  goods  are 
destroyed  or  consumed,  to  the  prejudice  of  the  lawful  owner. 


168  Co:sVEKlbiON. 

But  it  has  never  yet  been  held,  that  the  single 
act  of  removal  of  a  chattel,  independent  of  any  claim  over 
it,  either  in  favor  of  the  party  himself  or  any  one  else, 
amounts  to  a  conversion  of  the  chattel."  Lord  Abinger  in 
Fouldes  V.  Willoughhy,  8  M.  &  W.  540,  544.  See,  also, 
Eldridge  v.  Adams,  54  Barb.  417,  and  0.  J.  Gude  Co.  v. 
Farley,  25  Misc.  502. 

Distinguished  from  trespass. —  "  There  are  two  principal 
differences  between  the  actions  of  trespass  and  trover  [techni- 
cally called  conversion,  and  developed,  to  a  large  extent, 
through  the  common-law  action  on  the  case  of  trover]  for 
personalty  appropriated  by  defendant ;  the  first  of  which  is, 
that  in  trespass  there  is  always  either  an  original  wrongful 
taking,  or  a  taking  made  wrong-ful  ah  initio  by  subsequent 
misconduct,  while  in  trover,  the  original  taking  is  supposed 
or  assumed  to  be  lawful,  and  often  the  only  wrong  consists 
in  a  refusal  to  surrender  a  possession  which  was  originally 
rightful,  but  the  right  to  which  has  terminated.  The  second 
is,  that  trespass  lies  for  any  wrongful  force,  but  the  wrong- 
ful force  is  no  conversion  where  it  is  employed  in  recogni- 
tion of  the  owner's  right,  and  with  no  purpose  to  deprive 
him  of  his  right,  temporarily  or  permanently."  Cooley  on 
Torts  (2d  ed.),  517. 

Ancient  modes  of  redress  for  loss  of  goods. —  "  By  the  an- 
cient law  of  England  there  existed  four  different  modes  of 
redress  for  the  loss  of  goods:  by  appeal  of  robbery  (in  which 
restitution  as  well  as  punishment  for  the  felony  was  awarded, 
.),  by  writ  of  replevin,  by  writ  of  trespass,  and  by 
writ  of  detinue.  But  these  proceedings  were  not  adequate 
for  relief  in  all  cases.  The  appeal  of  robbery  availed  only 
when  goods  had  been  feloniously  taken ;  and  the  writ  of  re- 
plevin Avas  applicable  only  in  cases  of  distress."  Bigelow's 
Leading  Cases,  420. 

Replevin. —  "  By  the  common  law,  whenever  the  goods  of 
one  man  had  been  wrongfully  distrained  by  another   (not 


Conversion.  169 

being  a  sheriff  or  iiis  oiBcer  acting  in  execution  of  the  process 
of  a  superior  court),  and  the  person  out  of  vvhose  possession 
the  goods  had  been  taJsen  wished  to  have  them  restored  to 
him,  and  to  try  the  lawfuhiess  of  the  seizure,  he  might  get 
back  his  goods  by  giving  security  to  the  sheriff  of  the  county 
to  prosecute  an  action  with  success,  and  make  out  the  in- 
justice of  the  taking.  The  proceeding  by  which  this  was  ac- 
complished was  called  a  replevin,  or  the  getting  back  of  a 
chattel  taken  and  detained  as  a  pledge  or  security,  by  sub- 
stituting another  pledge  in  the  place  of  the  thing  taken." 
Addison  on  Torts,  515. 

Replevin  in  the  cepit  and  in  the  detinet. —  "  The  action  to 
recover  a  chattel,  as  regulated  by  the  Code  of  Ci\TLl  Pro- 
cedure, is  substantially  a  substitute  for  the  action  of  replevin 
as  it  had  previously  existed.  At  common  law  and  under 
the  Revised  Statutes  there  were  two  actions  of  replevin,  one 
in  the  cepit  and  one  in  the  detinet.  In  replevin  in  the  cepit 
the  general  issue  was  tendered  by  the  plea  of  non  cepit,  and 
that  put  in  issue  only  the  taking  at  the  place  stated  in  the 
declaration.  That  rule  of  the  common  law  was  copied  into 
the  Revised  Statutes.  (2  R.  S.  528,  §  39.)  Under  that  plea 
the  defendant  could  not  show  title  in  himself  or  in  a  stranger. 
As  it  was  necessary  in  such  an  action  for  the  plaintiff  only 
to  show  that  he  was  in  possession  of  the  property  and  that 
the  defendant  wrongfully  took  it  from  his  possession,  the 
plea  put  in  issue  all  plaintiff  v>'as,  in  the  first  instance 
bound  to  prove.  Without  more,  property  in  a  third  person 
could  be  no  defense  to  such  an  action.  Therefore,  in  order 
to  defend  such  an  action,  the  defendant  was  bound  to  prove 
either  property  in  himself,  or  property  in  a  third  person 
with  which  he  was  in  some  way  connected  and  under  which 
he  could  justify,  and  the  facts  he  was  bound  specially  to 
allege. 

"  But  in  an  action  of  replevin  in  the  detinet,  the  general 
issue  was  tendered  by  the  plea  of  non  detinet,  and  that  plea 
at  common  law  put  in  issue,  as  well  the  plaintiff's  property 


170  Conversion. 

in  the  goods  as  the  detention  thereof  bj  the  defendant.  And 
it  was  provided  in  the  Revised  Statutes  (2  R.  S.  529,  §  40), 
that  '  when  the  action  is  founded  on  the  wrongful  detention 
of  the  goods,  and  the  original  taking  is  not  complained  of, 
the  plea  of  the  general  issue  shall  be,  that  the  defendant 
does  not  detain  the  goods  and  chattels  specified  in  the  dec- 
laration, or  any  part  thereof,  in  manner  and  form  as  therein 
alleged;  and  such  plea  shall  put  in  issue,  not  only  the  de- 
tention of  such  goods  and  chattels,  but  also  the  property  of 
the  plaintiff  therein.'  It  was  also  provided  by  the  Revised 
Statutes  (2  R.  S.  528,  §  36),  that  the  action  of  replevin 
might  be  founded  upon  both  the  wrongful  taking  and  the 
detention  of  the  property,  in  which  case  it  was  necessary  that 
the  declaration  should  allege  the  wrongful  taking  and  also 
allege  that  the  defendant  continued  to  detain  such  prop- 
erty." Griffin  v.  Long  Island  Railroad  Co.,  101  ]^.  Y.  348, 
352. 

Replevin  distinguished  from  trespass. —  "  The  whole  pro- 
ceeding of  replevin,  at  common  law,  is  distinguished  from 
that  in  trespass  in  this,  among  other  things :  that,  while  the 
latter  is  intended  to  procure  a  compensation  in  damages  for 
goods  wrongfully  taken  out  of  the  actual  or  constructive  pos- 
session of  the  plaintiff,  the  object  of  the  former  is  to  pro- 
cure a  restitution  of  the  goods  themselves ;  and  this  it  effects 
by  a  preliminary  ex  parte  interference  by  the  officer  of  the 
law  with  the  possession.  This  being  done,  the  action  of  re- 
plevin, apart  from  the  replevin  itself,  is  again  distinguished 
from  trespass  by  this,  that,  at  the  time  of  declaring,  the  sup- 
posed wrongful  possession  has  been  put  an  end  to,  and  the 
litigation  proceeds  for  the  purpose  of  deciding  whether  he, 
who  by  the  supposition  was  originally  possessed,  and  out  of 
whose  possession  the  goods  were  taken,  and  to  w^hom  they  have 
been  restored,  ought  to  retain  that  possession,  or  whether 
it  ought  to  be  restored  to  the  defendant.  *  *  *  As  a  gen- 
eral mle  it  is  just  that  a  party  in  the  peaceable  possession  of 
land  or  goods  should  remain  undisturbed,  either  by  the  party 


Conversion.  171 

claiming  adversely  or  by  the  officers  of  the  law  until  the 
right  be  determined  and  the  possession  shown  to  be  unlawful. 
But,  where,  either  by  distress  or  merely  by  a  strong  hand, 
the  peaceable  possession  has  been  disturbed,  an  exceptional 
case  arises  ;  and  it  may  be  just  that,  even  before  any  determi- 
nation of  the  right,  the  law  should  interpose  to  replace  the 
parties  in  the  condition  in  which  they  were  before  the  act 
done,  security  being  taken  that  the  right  shall  be  tried,  and 
the  goods  be  forthcoming  to  abide  the  decision."  Mennie  v. 
BM'e,  6  El.  &  Bl.   842,  846. 

Replevin  regulated  by  statute. —  Originally,  replevin  was 
confined  to  cases  of  wrongful  taking,  but  in  many  of  the 
states  the  action  has  been  regulated  by  statute,  and  made 
to  include  cases  of  wrongful  detention  as  well  as  wrongful 
taking.  The  action,  however,  is  still  founded  in  tort,  and  the 
requirements  of  the  statute  must  be  complied  with  in  order 
to  maintain  the  action.  For  statutory  provisions  in  this 
state  see  iST.  Y.  Code  of  Civil  Procedure. 

Detinue. —  "  The  action  of  detinue  lies  where  a  party 
claims  the  specific  recovery  of  goods  and  chattels  or  deeds 
and  writings,  detained  from  him."  Heard's  Stephen  on  PL, 
9th  Am.  ed.,  15. 

"  In  order,  .  .  .  ,  to  ground  an  action  of  detinue, 
which  is  only  for  the  detaining,  these  points  are  necessary: 

1.  That  the  defendant  came  lawfully  into  the  possession  of 
the  goods,  as  either  by  delivery  to  him,  or  finding  them; 

2.  That  the  plaintiff  have  a  property;  3.  That  the  goods 
themselves  be  of  some  value;  and,  4.  That  they  be  ascer- 
tained in  point  of  identity."     3  Blackstone  Com.  151. 

The  action  of  detinue  supplied  the  defect  existing  in 
earlier  times  when  replevin  was  confined  to  cases  of  wrongful 
taking,  and  was  in  effect  a  writ  of  debt  for  a  chattel.  The 
subsequent  extension  of  the  action  of  replevin,  so  as  to  in- 
clude cases  of  wrongful  detention  as  well  as  wrongful  tak- 
ing, robbed  detinue  of  its  importance,  and  it  is  now  scarcely 
known. 


172  Conversion. 

Trover  and  conversion. —  "  This  action  of  trover  and  con- 
version  was  in  its  original  an  action  of  trespass  upon  the 
case,  for  recovery  of  damages  against  such  person  as  has 
found  anotlier's  goods,  and  refused  to  deliver  them  on  de- 
mand, but  converted  them  to  his  own  use;  from  vv'hich  find- 
ing and  converting  it  is  called  an  action  of  trover  and  coixr 
version.  The  freedom  of  this  action  from  wager  of  law,  and 
the  less  degree  of  certainty  requisite  in  describing  the  goods, 
gave  it  so  considerable  an  advantage  over  the  action  of 
detinue,  that  by  a  fiction  of  law  actions  of  trover  were  at 
length,  permitted  to  be  brought  against  any  man  who  had  in 
his  possession,  by  any  means  whatsoever,  the  personal  goods 
of  another^,  and  sold  them  or  used  them  without  the  consent 
of  the  owner,  or  refused  to  deliver  them  when  demanded. 
The  injury  lies  in  the  conversion :  for  any  man  may  take 
the  goods  of  another  into  possession,  if  he  finds  them ;  but 
no  finder  is  allowed  to  acquire  a  property  therein,  unless  the 
owner  be  forever  unknown:  and  therefore  he  must  not  con- 
vert them  to  his  ovm  use,  which  the  law  presumes  him  to  do, 
if  he  refuses  to  restore  them  to  the  o\^Tier:  for  which  reason 
such  refusal  alone  is,  lyrima  facie,  sufficient  evidence  of  con- 
version. The  fact  of  the  finding,  or  trover,  is  therefore  now 
totally  immaterial :  for  the  plaintiff  needs  only  to  suggest  (as 
■words  of  form)  that  he  lost  such  goods,  and  that  the  defend- 
ant found  them:  and  if  he  proves  that  the  goods  are  his 
property,  and  that  the  defendant  had  them  in  his  possession, 
it  is  sufficient.  But  a  conversion  must  be  fully  proved :  and 
then  in  this  action  the  plaintiff  shall  recover  damages,  equal 
to  the  value  of  the  thing  converted,  but  not  the  thing  itself: 
which  nothing  will  recover  but  an  action  of  detinue  or 
replevin."     3  Blackstone  Com.  152. 

Requisites  to  maintain  conversion.—  "  The  gist  of  this 
action  is  the  conversion  and  deprivation  of  the  plaintiff's 
property,  and  not  the  acquisition  of  property  by  the  defend- 
ant. 3  Barn.  &  Aid.  685,  The  general  requisites  to  main- 
tain the  action  are,  property  in  the  plaintiff ;  actual  pos- 
session or  a  right  to  the  immediate  possession  thereof;  and 


Conversion.  173 

a  wrongful  conversion  by  the  defendant."     Esmay  v.  Fan- 
ning, 9  Barb.  176,  188.  "^ 

"  I  have  ahvajs  understood  the  rule  of  law  to  be  that,  in 
order  to  maintain  trover,  the  plaintiff  must  have  a  right  of 
property  in  the  thing,  and  a  right  of  possession,  and  that, 
unless  both  these  rights  concur,  the  action  will  not  lie." 
Ashurst,  J.,  in  Gordon  v.  Harper,  7  Term  R.  9. 

Possession  and  property  right.— Eight  of  property  and 
right  to  possession,  being  essential  to  suj^port  an  action  for 
conversion,  may  be  considered  under: 

1.  General  o^vnership  and  actual  possession. 

2.  General  ownership  and  right  to  possession. 

3.  Special  ownership  and  general  right  to  possession. 

4.  Limited  special  ownership. 

A  person  in  whom  the  general  property  in  a  chattel  is 
vested,  and  who  is  in  actual  possession,  may  maintain  an 
action  for  conversion  against  any  person  who  takes  such 
chattel  and  exercises  an  act  of  dominion  over  it  to  the  ex- 
clusion of  his  rights. 

A  person  in  whom  the  general  property  in  a  chattel  is 
vested,  may  maintain  an  action  for  its  conversion,  although 
he  never  had  possession  in  fact ;  but  he  must  show  a  right  to 
the  immediate  possession  of  the  chattel. 

Persons  who  have  a  special  property  in  chattels,  such  as  a 
carrier,  a  workman  for  hire,  a  warehouse-keeper,  an  auc- 
tioneer, etc.,  may  maintain  an  action  for  conversion  against 
any  one  who  takes  and  keeps  them  without  color  of  right  so 
to  do.  If,  at  the  time  of  the  conversion,  the  plaintiff  was  in 
actual  possession,  it  is  no  defense  for  the  defendant  to  show 
title  in  a  third  person,  unless  he  connect  himself  in  some 
way  with  the  owner  of  the  chattel.  See  Wheeler  v.  Laivson, 
103  K  Y.  40. 

It  has  been  decided  that  possession  alone  is  sufficient  to 
enable  one  to  maintain  an  action  for  conversion,  and  in  a  lead- 
ing case  (see  Armory  v.  Delamirie,  1  Strange,  505),  since 
recognized  as  authority,  the  finder  of  a  jewel  was  held  en- 


174  Conversion. 

titled  to  bring  an  action  for  conversion  against  one,  who, 
having  taken  the  jewel  for  examination,  refused  to  return  it 
to  the  finder. 

Demand  and  refusal. —  Demand  and  refusal  do  not  in 
themselves  constitute  conversion,  but  they  furnish  proof  of 
conversion ;  hence  they  are  important  and  essential  only  in 
cases  of  lawful  taking,  but  unlawful  detention,  of  property. 
In  cases  of  wrongful  taking,  or  of  illegal  use  or  misuse  of 
property,  they  are  not  essential  or  necessary,  because  the 
wrongful  act  of  the  exercise  of  dominion  constitutes  con- 
version. It  is,  perhaps,  safer  and  better  to  make  demand,  and 
to  plead  demand  and  refusal  in  all  cases,  in  order  to  be 
sure  of  the  evidence  of  conversion,  and  to  avoid  being  taken 
by  surprise  at  trial. 

"A  demand  and  refusal  arc  not  a  conversion,  but  evidence 
from  which  it  can  be  inferred.  A  demand  is  necessary  when- 
ever the  goods  have  come  lawfully  into  the  defendant's  pos- 
session ;  unless  the  plaintiff  can  prove  some  wrongful  act  of 
the  defendant  in  respect  of  the  goods  which  amounts  to  an 
actual  conversion."    Esmay  v.  Fanning,  9  Barb.  176,  189. 

Remedies. —  When  personal  property  has  been  converted, 
plaintiff  may  elect  one  of  the  following  remedies : 

1.  Sue  to  recover  the  goods  {Replevin)  ;  or 

2.  Sue  for  the  value  of  the  goods  {Conversion)  ;  or 

3.  Waive  the  tort,  and  sue  in  assumpsit. 

Measure  of  damages. —  "An  amount  sufficient  to  indem- 
nify the  party  injured  for  the  loss,  which  is  the  natural,  rea- 
sonable and  proximate  result  of  the  wrongful  act  complained 
of,  and  which  a  proper  degree  of  prudence  on  the  part  of 
the  complainant  would  not  have  averted,  is  the  measure  of 
damages  which  juries  are  usually  instructed  to  award,  except 
in  cases  where  punitive  damages  are  allowable,"  Baker  \\ 
Drake,  53  N.  Y.  211,  216. 

"  The  value  of  the  chattel,  at  the  time  of  the  conversion, 
is  not,  in  all  cases,   the  rule  of  damages  in  trover ;  if  the 


Nuisance.  175 

thing  be  of  a  determinate  and  fixed  value,  it  may  be  the  rule, 
but  where  there  is  an  uncertainty,  or  fluctuation  attending 
the  value,  and  the  chattel  afterwards  rises  in  value,  the  plain- 
tiff can  only  be  indemnified  by  giving  him  the  price  of  it, 
at  the  time  he  calls  upon  the  defendant  to  restore  it,  and  one 
of  the  cases  even  carries  the  value  doMTi  to  the  time  of  the 
trial."  Cortelyou  v.  Lansing,  2  Caines  Cases  200,  216  (Kent, 
J.). 

"  It  is  the  natural  and  proximate  loss  which  the  plaintiff 
is  to  be  indemnified  for,  and  that  cannot  be  said  to  extend 
to  the  highest  price  before  trial,  but  only  to  the  highest 
price  reached  within  a  reasonable  time  after  the  plaintiff  has 
learned  of  the  conversion  of  his  stock  within  which  he  could 
go  in  the  market  and  repurchase  it.  What  is  a  reasonable 
time  when  the  facts  are  undisj)uted  and  different  inferences 
cannot  reasonably  be  drawn  from  the  same  facts,  is  a  ques- 
tion of  law."  Wright  v.  Bwnk  of  the  Metropolis,  110  N.  Y. 
237,  249. 


NUISANCE 

Defined. —  Mr.  Justice  Blackstone  defines  a  nuisance  as 
"  anything  done  to  the  hurt  or  annoyance  of  the  lands,  tene- 
ments, or  hereditaments  of  another."     3  Com.  216. 

"  Nuisance  is  the  wrong  done  to  a  man  by  unlawfully  dis- 
turbing him  in  the  enjoyment  of  his  property  or,  in  some 
cases,  in  the  exercise  of  a  common  right."  Pollock  on  Torts 
(7th  ed.),  393. 

"An  actionable  nuisance  may,  .  .  .  ,  be  said  to  be 
any  thing  wrongfully  done  or  permitted  which  injures  or 
annoys  another  in  the  enjoyment  of  his  legal  rights."  Cooley 
on  Torts  (2d  ed.),  670. 

"A  nuisance,  in  the  ordinary  sense  in  which  the  word  is 
used,  is  any  thing  that  produces  an  annoyance  —  any  thing 
that  disturbs  one  or  is  offensive;  but  in  legal  phraseology 
it  is  applied  to  that  class  of  wrongs  tliat  arise  from  the  im- 


17G  ISTUISANCE. 

reasonable,  unwarrantable  or  unlawful  use  by  a  person  of 
his  ovrn.  property,  real  or  personal,  or  from  bis  own  improper, 
indecent  or  unlawful  personal  conduct,  working  an  obstru'> 
tion  of,  or  injury  to,  a  right  of  another  or  of  the  public,  and 
producing  such  material  annoyance,  inconvenience,  discom- 
fort or  hurt,  that  the  law  will  presume  a  consequent  damage.'' 
Wood  on  Xuisance  (3d  ed.),  §  1. 

Distinguished  from  trespass. —  "  The  distinction  between 
'  nuisance  '  and  '  trespass '  is,  that  the  former  is  only  a  con- 
sequence or  result  of  what  is  not  directly  or  immediately  in- 
jurious, but  its  effect  is  injurious.  .  .  .  Trespass,  on 
the  other  hand,  is  a  direct  and  immediate  invasion  of  prop- 
erty."   Angell  on  Water  Courses  (7th  ed.),  §  388. 

*'  The  cause  of  action  in  trespass  is  interference  with  the 
right  of  a  possessor  in  itself,  while  in  nuisance  it  is  the  in- 
commodity  which  is  proved  in  fact  to  be  the  consequence,  or 
is  presumed  by  the  law  to  be  the  natural  and  necessary  con- 
sequence, of  such  interference,"  Pollock  on  Torts  (7th  ed.), 
399. 

What  constitutes  a  nuisance. —  "  It  is  a  general  rule  that 
every  person  may  exercise  exclusive  dominion  over  his  own 
property,  and  subject  it  to  svich  uses  as  will  best  subserve  his 
private  interests.  Generally,  no  other  person  can  say  how  he 
shall  use  or  what  he  shall  do  with  his  property.  But  this 
general  right  of  property  has  its  exceptions  and  qualifications. 
Sic  utere  tuo  ut  alienum  non  Iciedas  is  an  old  maxim  which 
has  a  broad  application.  It  does  not  m.ean  that  one  must 
never  use  his  own  so  as  to  do  any  injury  to  his  neighbor  or 
his  property.  Such  a  rule  could  not  be  enforced  in  civilized 
society.  Persons  living  in  organized  communities  must  suffer 
some  damage,  annoyance  and  inconvenience  from  each  other. 
For  these  they  are  compensated  by  all  the  advantages  of  civ- 
ilized society.  If  one  lives  in  the  city  he  must  expect  to 
suffer  the  dirt,  smoke,  noisome  odors,  noise  and  confusion  in- 
cident to  city  life. 


Nuisance.  177 

"  Bnt  every  person  is  bound  to  make  a  reasonable  use  of 
his  property  so  as  to  occasion  no  unnecessary  damage  or 
annoyance  to  his  neighbor.  If  he  make  an  unreasonable,  un- 
warrantable or  unla^vful  use  of  it,  so  as  to  produce  material 
annoyance,  inconvenience,  discomfort  or  hurt  to  his  neigh- 
bor, he  Avill  be  guilty  of  a  nuisance  to  his  neighbor.  And  the 
law  will  hold  him  responsible  for  the  consequent  damage.  As 
to  what  is  a  reasonable  use  of  one's  own  property  cannot  be 
defined  by  any  certain  general  rules,  but  must  depend  upon 
the  circumstances  of  each  case.  A  use  of  property  in  one 
locality  and  under  some  circumstances  may  be  lawful  and  rea- 
sonable, which,  under  other  circumstances,  would  be  unlaw- 
ful, unreasonable  and  a  nuisance.  To  constitute  a  nuisance, 
the  use  must  be  such  as  to  produce  a  tangible  and  appreciable 
injury  to  neighboring  property,  or  such  as  to  render  its  en- 
joyment specially  uncomfortable  or  inconvenient."  Camp- 
bell V.  Seaman,  63  X.  Y.  568,  576. 

Injury  to  property  and  physical  discomfort  distin- 
guished.— ■ "  My  lords,  in  matters  of  this  description  it  ap- 
pears to  me  that  it  is  a  very  desirable  thing  to  mark  the  differ- 
ence between  an  action  brought  for  a  nuisance  upon  the 
ground  that  the  alleged  nuisance  produces  material  injury 
to  the  property,  and  an  action  brought  for  a  nuisance  on  the 
ground  that  the  thing  alleged  to  be  a  nuisance  is  productive 
of  sensible  personal  discomfort.  With  regard  to  the  latter, 
namely,  the  personal  inconvenience  and  interference  with 
one's  enjojTnent,  one's  quiet,  one's  personal  freedom,  any- 
thing that  discomposes  or  injuriously  affects  the  senses  or 'the 
nerves,  whether  that  may  or  may  not  be  denominated  a  nui- 
sance, must  undoubtedly  depend  greatly  on  the  circumstances 
of  the  place  where  the  thing  complained  of  actually  occurs. 
If  a  man  lives  in  a  town,  it  is  necessary  that  he  should  sub- 
ject himself  to  the  consequences  of  those  operations  of  trade 
which  may  be  carried  on  in  his  immediate  locality,  which  are 
actually  necessary  for  trade  and  commerce,  and  also  for  the 
enjoyment  of  propertv,  and  for  the  benefit  of  the  inhabitants 
12 


178  Nuisance. 

of  the  town  and  of  the  public  at  large.  If  a  man  lives  iu  a 
street  where  there  are  numerous  shops,  and  a  shop  is  opened 
next  door  to  him,  which  is  carried  ou  in  a  fair  and  reasonable 
way,  he  has  no  ground  for  complaint,  because  to  himself 
individually  there  may  arise  much  discomfort  from  the  trade 
carried  on  in  that  shop.  But  when  an  occupation  is  carried 
on  by  one  person  in  the  neighborhood  of  another,  and  the 
result  of  that  trade,  or  occupation,  or  business,  is  a  material 
injury  to  property,  then  there  unquestionably  arises  a  very 
different  consideration.  I  think,  my  Lords,  that  in  a  case 
of  that  description,  the  submission  which  is  required  from 
persons  living  in  society  to  that  amount  of  discomfort  which 
may  be  necessary  for  the  legitimate  and  free  exercise  of  the 
trade  of  their  neighbors,  would  not  apply  to  circumstances 
the  immediate  result  of  which  is  sensible  injury  to  the  value 
of  the  property."  St.  Helens  Smelting  Co.  v.  Tipping,  11 
H.  L.  Cas.  642,  650. 

With  reference  to  this  distinction,  Mr.  Bigelow  (Leading 
Cases,  4G7)  remarks:  "Just  what  the  distinction  is  it  is 
probably  impossible  to  say ;  and  the  distinction  itself  is  diffi- 
cult to  apprehend.  The  meaning  appears  to  be  that  the  de- 
gree of  harm  in  an  action  for  personal  discomfort  must  be 
greater  than  in  an  action  for  an  injury  to  property.  This 
may  be  a  practical  rule  in  a  case  where  both  kinds  of  injury 
appear;  but  how  will  it  be  where  the  action  is  for  personal 
discomfort,  and  there  is  no  proof  of  injury  to  property  ?  How 
much  discomfort  must  be  endured  ?" 

Standard  for  bodily  discomfort. — '■'■  In  densely  populated 
communities  the  use  of  property  in  many  ways  which  are 
legitimate  and  proper  necessarily  affects  in  greater  or  less 
degree  the  property  or  persons  of  others  in  the  vicinity.  In 
such  cases  the  inquiry  always  is,  when  rights  are  called  in 
question,  what  is  reasonable  under  the  circumstances.  If  a 
use  of  property  is  objectionable  solely  on  account  of  the  noise 
which  it  makes,  it  is  a  nuisance,  if  at  all,  by  reason  of  its 
effect  upon  the  health  or  comfort  of  those  who  are  within 


Nuisance.  179 

hearing.  The  right  to  make  a  noise  for  a  proper  purpose  must 
be  measured  in  reference  to  the  degree  of  annoyance  which 
others  may  reasonably  be  required  to  submit  to.  In  connec- 
tion with  the  importance  of  the  business  from  which  it  pro- 
ceeds, that  must  be  determined  by  the  effect  of  noise  upon 
people  generally,  and  not  upon  those,  on  the  one  hand,  who 
are  peculiarly  susceptible  to  it,  or  those,  on  the  other,  who  by 
long  experience  have  learned  to  endure  it  without  incon- 
venience; not  upon  those  whose  strong  nerves  and  robust 
health  enable  them  to  endure  the  greatest  disturbances  with- 
out suffering,  nor  upon  those  whose  mental  or  physical  con- 
dition makes  them  painfully  sensitive  to  everything  about 
them. 

"  That  this  must  be  the  rule  in  regard  to  public  nuisances 
is  obvious.  It  is  the  rule  as  well,  and  for  reasons  nearly 
if  not  quite  as  satisfactory,  in  relation  to  private  nuisances. 
Upon  a  question  whether  one  can  lawfully  ring  his  factory 
bell,  or  run  his  noisy  machinery,  or  whether  the  noise  will 
be  a  private  nuisance  to  the  occupant  of  a  house  near  by,  it 
is  necessary  to  ascertain  the  natural  and  probable  effect  of 
the  sound  upon  ordinary  persons  in  that  house,  —  not  how  it 
will  affect  a  particular  person,  who  happens  to  be  there  to-day, 
or  who  may  chance  to  come  to-morrow.     .     .     . 

******** 

"  If  one's  right  to  use  his  property  were  to  depend  upon 
the  effect  of  the  use  upon  a  person  of  peculiar  temperament 
or  disposition,  or  upon  one  suffering  from  an  uncommon 
disease,  the  standard  for  measuring  it  would  be  so  uncertain 
and  fluctuating  as  to  paralyze  industrial  enterprises."  Rogers 
V.  Elliott,  146  Mass.  349,^351. 

Classification. — •  Nuisances  are  public  or  private  according 
as  they  affect  public  or  private  rights. 

Public  nuisance. —  "  Public  nuisances,  strictly,  are  such  as 
result  from  the  violation  of  public  rights,  and,  producing  no 
special  injury  to  one  more  than  another  of  the  people,  may 
be  said  to  have  a  common  effect,  and  to  produce  a  common 
damage."     Wood  on  Nuisances  (3d  ed.),  §  14. 


180  NuisAjsrcE. 

"  A  common  or  public  nuisance  is  that  which  affects  the 
people  and  is  a  violation  of  a  public  right  either  by  direct 
encroachment  upon  public  property  or  by  doing  some  act 
which  tends  to  a  common  injury  or  by  the  omitting  of  that 
which  the  common  good  requires,  and  w^hich  it  is  the  duty 
of  a  person  to  do.  Public  nuisances  are  founded  upon 
wrongs  that  arise  from  the  unreasonable,  unwarrantable  or 
unlawful  use  of  property,  or  from  improper,  indecent  or 
unlawful  conduct  working  an  obstruction  or  injury  to  the 
public  and  producing  material  annoyance,  inconvenience  and 
discomfort.  Founded  upon  a  wrong  it  is  indictable  as  for 
a  misdemeanor."  Dissenting  opinion  in  Bohan  v.  P.  J.  G. 
L.  Co.,  122  :N.  Y.  18,  32. 

''  A  public  nuisance  is  a  crime  against  the  order  and  econ- 
omy of  the  state,  and  consists  in  unlawfully  doing  an  act, 
or  omitting  to  perform  a  duty,  which  act  or  omission : 

"  1.  Annoys,  injures  or  endangers  the  comfort,  repose, 
health  or  safety  of  any  considerable  number  of  persons ;  or 

"  2.   Offends  public  decency ;  or 

"  3.  Unlawfully  interferes  with,  obstructs,  or  tends  to 
obstruct,  or  renders  dangerous  for  passage,  a  lake,  or  a  navi- 
gable river,  bay,  stream,  canal  or  basin,  or  a  stream,  creek 
or  other  body  of  water  which  has  been  dredged  or  cleared  at 
public  expense,  or  a  public  park,  square,  street  or  highway ; 
or 

"  4.  In  any  way  renders  a  considerable  number  of  persons 
insecure  in  life,  or  the  use  of  property."  N.  Y.  Penal  Code, 
§  385. 

Private  nuisance. —  "Private  nuisances  are  injuries  that 
result  from  the  violation  of  private  rights,  and  produce  dam- 
ages to  but  one  or  a  few  persons,  so  that  it  cannot  be  said  to 
.be  public."      "Wood  on  Nuisances  (3d  ed.),  §  15. 

"  A  private  nuisance  rests  upon  a  different  principle  [from 
a  public  nuisance].  It  is  not  necessarily  founded  upon  a 
wrong,  and  consequently  cannot  be  indicted  and  punished  as 
for  an  offence.     It  is  founded  u2)on  injuries  that  result  from 


XuitiA^TCE.  181 

the  violation  of  private  rights  and  produce  damages  to  but 
one  or  few  persons.  Injury  and  damage  are  essential  eleh 
ments,  and  yet  they  may  both  exist  and  still  the  act  or  thing 
producing  them  not  be  a  nuisance.  Every  person  has  a  right 
to  the  reasonable  enjoyment  of  his  own  property,  and  so  long 
as  the  use  to  which  he  devotes  it  violates  no  rights  of  another 
however  much  damage  others  may  sustain  therefrom,  his  use 
is  lawful  and  it  is  damnum  absque  injuria."  Dissenting 
opinion  in  Bohan  v.  P.  J.  G.  L.  Co.,  122  ^t.  y.  18,  33. 

A  public  nuisance  may  also  be  a  private  nuisance. — A 

public  nuisance  also  becomes  a  private  nuisance  when  it  oc- 
casions special  damage  to  an  individual.  In  such  case  a  civil, 
as  well  as  criminal,  action  will  lie. 

"  Every  individual  who  suffers  actual  damage  from  a  com- 
mon nuisance  may  maintain  an  action  for  his  own  particular 
injury,  though  there  may  be  others  equally  damnified.  It  is 
essential,  however,  to  allege  and  prove  special  damage." 
Sedgwick  on  Damages  (8th  ed.),  §  946. 

"  One  erecting  or  maintaining  a  common  nuisance  is  not 
liable  to  an  action  at  the  suit  of  one  who  has  sustained  no 
damage  therefrom  except  such  as  is  common  to  the  entire 
community,  yet  he  is  liable  at  the  suit  of  one  who  has  ms- 
tained  damage  peculiar  to  himself.  Xo  matter  how  numer- 
ous the  persons  may  be  who  have  sustained  this  peculiar 
damage,  each  is  entitled  to  compensation  for  his  injury. 
^^Tien  the  injury  is  common  to  the  public  and  special  to  none, 
redress  must  be  sought  by  a  criminal  prosecution  in  behalf 
of  all."    Francis  v.  Schoellhopf,  53  K  Y.  152,  154. 

"  If  the  business  is  unlawful,  the  complainant  in  a  private 
action  must  show  special  damage,  by  which  the  legitimate 
use  of  his  adjoining  property  has  been  interfered  with,  or  its 
occupation  rendered  unfit,  or  uncomfortable.  That  the  per- 
petrator of  the  nuisance  is  amenable  to  the  provisions  aud 
penalties  of  the  criminal  law  is  not  an  answer  to  an  action 
against  him  by  a  private  person  to  recover  for  injury  sus- 
tained, and  for  an  injunction  against  the  continued  use  of 


182  Nuisance. 

his  premises  in  such  a  manner.  The  principle  has  been  long 
settled  that  the  objection  that  the  nuisance  was  a  common 
one  is  not  available,  if  it  be  shown  that  special  damage  wa? 
suffered."     Cranford  v.  Tyrrell  128  N.  Y.  341,  344. 

Continuing  nuisance. — • "  In  the  case  of  nuisances  or  re- 
peated trespasses,  recovery  can  ordinarily  be  had  only  up  to 
the  commencement  of  the  suit,  because  every  continuance  or 
repetition  of  the  nuisance  gives  rise  to  a  new  cause  of  action, 
and  the  plaintiff  may  bring  successive  actions  as  lor.g  as  the 
nuisance  lasts.  .  .  .  The  cause  of  action,  in  ca?e  of  an 
ordinary  nuisance,  is  not  so  much  the  act  of  the  defendant, 
as  the  injurious  consequences  resulting  from  his  act ;  and 
hence  the  cause  of  action  does  not  arise  until  such  conse- 
quences occur,  nor  can  the  damages  be  estimated  beyond  the 
date  of  bringing  the  first  suit.  (5  Am.  &  Eng.  Lnc.  cf  Lav, 
page  17  and  cases  in  notes.)  It  has  been  held,  however, 
where  permanent  structures  are  erected,  resulting  in  injury 
to  adjacent  realty,  all  damages  may  be  recovered  in  a  single 
suit.  (Idem,  page  20  and  cases  in  note.)  But  there  is  much 
confusion  among  the  authorities,  which  attempt  to  distin- 
guish between  cases  where  successive  actions  lie,  and  those 
in  which  only  one  action  may  be  maintained. 

"  .  .  .  Some  cases  hold  it  to  be  unreasonable  to  assume, 
that  a  nuisance  or  illegal  act  will  continue  forever,  and  there- 
fore refuse  to  give  entire  damages  as  for  a  permanent  injury, 
but  allow  such  damages  for  the  continuation  of  the  wrong 
as  accrue  up  to  the  date  of  the  bringing  of  the  suit.  Other 
cases  take  the  ground,  that  the  entire  controversy  should  be 
settled  in  a  single  suit,  and  that  damages  should  be  allowed 
for  the  whole  injury  past  and  prospective,  if  such  injury  be 
proven  with  reasonable  certainty  to  be  permanent  in  its 
character.  .  .  .  We  think  upon  the  whole  that  the  more 
correct  view  is  presented  in  the  former  class  of  cases." 
Schlitz  Brewing  Co.  v.  Compton,  142  111.  511,  514. 

"  There  never  has  been  in  this  State  before  this  case  the 
least  doubt  expressed  in  any  judicial  decision,  so  far  as  I  can 


J^UISANCE.  183 

discover,  that  the  plaintiff  in  such  a  case  is  entitled  to  recover 
damages  only  up  to  the  commencement  of  the  action.  That 
such  is  the  rule  is  as  well  settled  here  as  any  rule  of  law  can 
be  by  repeated  and  uniform  decisions  of  all  the  courts ;  and  it 
is  the  prevailing  doctrine  elsewhere.     . 

******** 

^'  .  .  .  Here  the  authorities  are  entirely  uniform 
that  in  such  an  action  as  this,  damages  can  be  recovered  only 
up  to  the  commencement  of  the  action,  and  that  the  r-'uie'Jy 
of  the  plaintiff  is  by  successive  actions  for  his  damages  v.::  i 
the  nuisance  shall  be  abated."  Ulme  v.  N.  Y.  C.  &  II.  B.  B. 
R.  Co.,  101  K  Y.  98,  109,  116. 

Elevated  railroad  damage  cases:  neither  nuisances  nor 
trespasses.—''  The  elevated  railroad  cases,  .  .  .  ,  are 
sui  generis.  They  are  governed  by  principles  which  apply 
to  no  other  class  of  cases.  The  wrongful  acts  for  which  the 
elevated  railroad  companies,  operating  in  the  city  ui  Incw 
York,  have  been  held  liable,  are  technically  neither  nuisances 
nor  trespasses.  They  may  more  correctly  be  described  as 
wrongful  appropriations  of  the  easements  which  are  an  in- 
tegral part  of  the  property  of  adjoining  owners.  These 
wrongful  acts,  although  an  invasion  of  the  rights  of  such 
owners,  were  not  trespasses,  because  there  was  no  physical 
entry  or  intnision  upon  their  lands,  and  this  for  the  reason 
that  the  ownership  of  the  fee  in  the  streets  upon  which  the 
elevated  railroads  were  built  was  in  the  municipality  and  not 
in  the  adjoining  owners.  There  was  no  nuisance,  in  the  legal 
signification  of  that  term,  because  the  railroad  companies 
were  expressly  authorized  by  legislative  enactment  to  occupy 
the  streets  for  that  purpose.  This  express  right  was  coupled 
with  the  power  of  eminent  domain  so  that  these  corporations 
could  acquire,  in  condemnation  proceedings,  the  easements 
of  adjoining  owners  which  it  might  be  necessary  to  destroy 
or  appropriate.  The  appropriation  and  destruction  of  such 
easements  by  said  corporations,  without  resort  to  condemna- 
tion proceedings,  led  to  the  so-called  elevated  railroad  litiga- 


184  Nuisance. 

tion,  which  for  immensity  of  volume  and  variety  and  diffi- 
culty of  questions  involved,  has  no  parallel  in  our  jurispru- 
dence." Bly  V.  Edison  Electric  Illuminating  Co.,  172  N.  Y. 
1,7. 

Parties. —  Every  person  who  has  been  especially  aggrieved 
has  a  right  of  action,  and  every  person  who  creates  or  con- 
tinues a  nuisance  is  liable. 

"A  person  by  whom  the  nuisance  has  been  erected,  and  a 
person  to  whom  the  real  property  has  been  transferred,  may 
be  joined  as  defendants  in  such  an  action."  iST.  Y.  Code  Civ. 
Pro.,  §  1661. 

"  It  is  not  the  general  rule  that  an  owner  of  land  is,  as 
such,  responsible  for  any  nuisance  thereon.  It  is  the  occupier, 
and  he  alone,  to  whom  such  responsibility  generally  and 
prima  facie  attaches.  .  .  .  The  owner  is  responsible  if 
he  creates  a  nuisance  and  maintains  it ;  if  he  creates  a  nui- 
sance and  then  demises  the  land  with  the  nuisance  thereon, 
although  he  is  out  of  occupation ;  if  the  nuisance  was  erected 
on  the  land  by  a  prior  owner,  or  by  a  stranger,  and  he  know- 
ingly maintains  it ;  if  he  has  demised  premises  and  covenanted 
to  keep  them  in  repair,  and  omits  to  repair,  and  thus  they 
become  a  nuisance ;  if  he  demises  premises  to  be  used  as  a 
nuisance,  or  for  a  business,  or  in  a  way  so  that  they  will 
necessarily  become  a  nuisance. 

"A  grantee  or  devisee  of  premises  upon  which  there  is  a 
nuisance  at  the  time  the  title  passes,  is  not  responsible  for  the 
nuisance  until  he  has  had  notice  thereof,  and  in  some  cases 
until  he  has  been  requested  to  abate  the  same.  The  authori- 
ties to  this  effect  are  so  numerous  and  uniform  that  the  rule 
which  they  establish  ought  no  longer  to  be  open  to  question." 
Ahem  v.  Steele,  115  K  Y.  203,  209. 

Remedies. — ■ "  The  remedies  for  nuisances  are  threefold : 
preventive,  compensatory  and  punitive.  The  first  divides  it- 
self again  into  the  remedy  by  abatement,  without  process  of 
law,  and  by  injunction.  The  compensatory  remedy  is  an 
action  at  law  for  damages,  the  punitive  remedy  an  indict- 


NuisAifCE.  185 

ment  on  behalf  of  the  public."     XVI.  Am.  &  Eng,  Enc.  of 
Law  (1st  ed.),  959. 

Abatement.—  "A  remedy  allowed  by  law  to  the  party  in- 
jured by  a  nuisance  to  abate,  destroy,  remove,  or  put  an  end 
to  the  same  by  his  own  act.  Whatever  unlawfully  annoys  or 
damages  another  is  a  nuisance,  which  may  be  abated,  i.  e., 
taken  away  or  removed  by  the  aggrieved  party,  so  that  he 
commit  no  riot  in  the  doing  of  it.  This  seems  to  be  the 
primitive  sense  of  the  term  abatement.  The  reason  why  the 
law  allows  this  summary  method  of  doing  one's  self  justice,  Is 
because  injuries  of  this  kind  require  an  immediate  remedy 
and  cannot  wait  for  the  slow  progress  of  the  ordinary  forms 
of  justice."    Wharton's  Law  Lexicon  (2d  Am.  ed.). 

Theory  of  abatement. —  "  The  true  theory  of  abatement  of 
nuisance  is  that  an  individual  citizen  may  abate  a  private 
nuisance  injurious  to  him,  when  he  could  also  bring  an  ac- 
tion; and  also,  when  a  common  nuisance  obstructs  his  indi- 
vidual right,  he  may  remove  it  to  enable  him  to  enjoy  that 
right,  and  he  cannot  be  called  in  question  for  so  doing.  As 
in  the  case  of  the  obstruction  across  a  highway,  and  an  unau- 
thorized bridge  over  a  navigable  water-course,  if  he  has 
occasion  to  use  it,  he  may  remove  it  by  way  of  abatement. 
But  this  would  not  justify  strangers,  being  inhabitants  of 
other  parts  of  the  Commonwealth,  having  no  such  occasion  to 
use  it,  to  do  the  same.  Some  of  the  earlier  eases,  perhaps,  in 
laying  down  the  general  proposition  that  private  subjects  may 
abate  a  common  nuisance,  did  not  expressly  mark  this  dis- 
tinction ;  but  w©  think,  upon  the  authority  of  modern  cases, 
where  the  distinctions  are  more  accurately  made,  and  upon 
principle,  this  is  the  true  rule  of  law."  Brown  v.  Perkins, 
12  Gray,  89,  101. 

"An  individual  aggrieved  by  a  private  nuisance  may  have 

his  action,  or  he  may  abate  the  nuisance.    A  party  sustaining 

.a.  special  injury  from  a  public  or  common  nuisance  may  also 

have  his  action,  and  in  the  like  case  he  may  abate  the  nuisance. 

In  the  language  of  Lord  Campbell,  it  becomes  to  him  a  pri- 


186  Nuisance. 

vate  nuisance.  lie  may  remove  that  which  interferes  with 
his  right,  to  the  extent  necessary  to  the  reasonable  enjoyment 
of  the  right  of  which  the  thing  interposed  \.ouii  deprive  him, 
doing  no  unnecessary  damage.  A  party,  by  erecting  a  nui- 
sance, doe3  not  put  himself,  cr  h'.^  property,  beyond  the  pro- 
tection of  the  lav,-.  If  an  :ncl" -i  bial  cr  member  of  the  com- 
mr-''"  r-n  vrith  reasc::r.b]o  <"are,  notwithstanding  the  act 
oom.plained  of,  enjoy  the  right  or  franchise  belonging  to 
him,  1  3  15  not  at  Tbovty  to  de^'roy  or  interfere  with  the  prop- 
er'v  cf  the  wrongdoer."  Ilarroirer  v.  Eitson,  37  Barb.  301, 
310. 

Effect  of  abatement  upon  aclion, —  ''  It  is  contended  that 
the  remedy  by  action  was  barred  by  the  abatement ;  that  the 
plaint. If  hav.ng  tr.l.en  t-.e  means  of  redress  into  his  own 
hand3,  is  concluded,  as  in  case  of  distraining  an  article  dam- 
age feasant.  \\e  do  not  understand  this  to  be  the  effect  of 
remo  ing  a  nuisance.  True,  it  is  treated  in  the  books  as  a 
remedy  by  the  act  of  the  party.  But  it  does  not  operate  to 
redress  the  injury  like  a  distress.  It  is  preventive  merely; 
and  resembles  more  an  entry  into  land,  or  recaption  of  per- 
sonal property.  Xeither  will  bar  an  action  for  the  original 
invasion  of  the  plaintiff's  right.  Suppose  in  this  case  the 
plaintiff's  horse  or  carriage  had  been  injured;  would  it  be 
pretended  that  his  afterwards  throwing  down  the  fence, 
should  operate  as  an  indemnity  ?  The  case  at  bar  depends  on 
the  same  principle."     Pierce  v.  Dari,  7  Cowen,  009,  612. 

"  In  the  case  of  a  private  nuisance,  the  aggrieved  party  has 
an  election  of  remedies.  He  may  remove  the  nuisance,  or  he 
may  have  his  action  for  the  private  damages  sustained  by 
him.  lie  can  not  have  both  remedies."  Griffidi  v,  McCul- 
lum,  46  Barb.  561,  569. 

The  rule  stated  in  Pierce  v.  Dart,  supra,  Avould  seem  to  be 
the  correct  one,  because  the  remedy  by  abatement  can  in  no 
sense  be  regarded  as  compensatory,  and  the  aggrieved  party 
is  limited  in  the  exercise  of  the  right,  viz.,  "  he  may  remove 
that  which  interferes  with  his  right,  to  the  extent  necessary 


Nuisance.  187 

to  the  reasonable  enjoyment  of  the  right  of  which  the  thing 
interposed  would  deprive  him." 

"  The  abatement  of  a  nuisance  by  the  plaintiff  does  not 
preclude  him  from  recovering  damages  sustained  anterior  to 
such  abatement.  Gleason  v.  Gary,  4  Conn.  418;  Tate  v. 
Parish,  Y  Monr.  (Ky.)  325;  Crump  v.  Lamhert,  13  L.  T. 
(X.  S.)  133;  affirming  S.  C,  L.  R,  3  Eq.  409."  4  Wait's 
Act.  &  Def.  776. 

Abatement  a  dangerous  remedy. —  '^  This  remedy  is  a  dan- 
gerous one,  and  one  which  should  never  be  resorted  to  except 
in  extreme  cases,  when  the  exigencies  of  the  case  will  not 
brook  delay.  The  law  generally  affords  ample  redress  for  all 
injuries,  and  if  no  verdict  declaring  the  thing  to  be  a  nuisance 
can  be  obtained,  no  justification  for  its  removal  can  be  upheld. 
The  party  judges  at  his  peril,  and  if  he  errs  in  judgment  he  is 
answerable  for  all  the  damages  that  ensue,  and  if,  in  the 
exercise  of  the  right,  a  breach  of  the  peace  is  involved,  he  is 
answerable  by  indictment  for  the  result.  Therefore,  gen- 
erally, it  is  unsafe  to  advise  a  party  to  remove  a  nuisance 
himself,  at  least  if  the  nuisance  is  not  beyond  doubt,  and  the 
removal  confined  within  the  limits  of  actual  right."  Wood 
on  Nuisances  (3d  ed.),  §  848. 

Injunction. — ''  It  is  a  matter  of  conmion  learning  and 
practice  that  an  injunction  is  not,  like  damages,  a  remedy 
(as  it  is  said)  ex  dehito  justitiw.  Whether  it  shall  be  granted 
or  not  in  a  given  case  is  in  the  judicial  discretion  of  the 
court,  now  guided  by  principles  which  have  become  pretty 
well  settled.  In  order  to  obtain  an  injunction  it  must 
be  sho\^Ti  that  the  injury  complained  of  as  present  or  im- 
pending is  such  as  by  reason  of  its  gravity,  or  its  permanent 
character,  or  both,  cannot  be  adequately  compensated  in  dam- 
ages. The  injury  must  be  either  irreparable  or  continuous. 
This  remedy  is  therefore  not  appropriate  for  damage  which 
is  in  its  nature  temporary  and  intermittent,  or  accidental 
and  occasional,  or  for  an  interference  with  legal  rights  which 
is  trifling  in  amount  and  effect."  XVI.  Am.  &  Eng.  Enc 
of  Law  (Isted.),  959. 


188  K'tnsANCE. 

"  Formerly  tliis  power  was  exercised  sparingly,  and  only  in 
extreme  cases,  at  least  until  after  the  right  and  the  question 
of  nuisance  had  been  first  settled  at  law.  But  now  the  only 
effectual  remedy  for  the  abatement  of  a  nuisance,  except 
where  special  provision  is  made  therefor  by  statute,  is  in  a 
court  of  equity,  and  the  jurisdiction  is  predicated  upon  the 
broad  ground  of  preventing  irreparable  injury,  interminable 
litigation,  a  multiplicity  of  actions,  and  the  protection  of 
rights."    AVood  on  ISTuisances,  §  777. 

"  The  cases  in  which  chancery  has  interfered  by  injunction, 
to  prevent  or  remove  a  private  nuisance,  are  those  in  which 
the  nuisance  has  been  erected  to  the  prejudice  or  annoy- 
ance of  a  right  which  the  other  party  had  long  lyreviously 
enjoyed.  It  must  be  a  strong  and  mischievous  case  of  press- 
ing necessity,  or  the  right  must  have  been  previously  estab- 
lished at  law,  to  entitle  the  party  to  call  to  his  aid  the  juris- 
diction of  this  Court."  Van  Bergen  v.  Fan  Bergen,  3  Johns. 
Ch.  282,  287. 

"  If  the  thing  sought  to  be  prohibited  is  in  itself  a  nui- 
sance, the  court  will  interfere  to  stay  irreparable  mischief, 
where  the  complainant's  right  is  not  doubtful,  without  wait- 
ing for  the  result  of  a  trial.  But  where  the  thing  sought  to 
be  restrained  is  not  in  itself  noxious,  but  only  something 
which  may  according  to  circumstances  prove  to  be  so,  the 
court  will  refuse  to  interfere  until  the  matter  has  been  tried 
at  law  by  an  action;  though  in  particular  cases  the  court 
may  direct  an  issue,  for  its  own  satisfaction,  where  an  action 
could  not  be  brought  in  such  a  form  as  to  meet  tlie  question. 
And  in  applying  these  principles,  if  the  magnitude  of  the 
injury  to  be  dreaded  is  great,  and  the  risk  so  imminent  that 
no  prudent  person  would  think  of  incurring  it,  the  court  will 
Dot  refuse  its  aid  for  the  protection  of  the  complainant's 
rights,  by  injunction,  on  the  ground  that  there  is  a  bare  pos- 
sibility that  the  anticipated  injury  from  the  noxious  erection 
may  not  happen."  Mohaivk  Bridge  Co.  v.  UHca  &  Schenec- 
tady R.  R.  Co.,  6  Paige,  554,  563. 

"  Prior  to  Lord  Eldon's  time,  injunctions  were  rarely 
issued  by  courts  of  equity.     During  the  many  years  he  sat 


NuisAjsrcB.  189 

upon  the  woolsack  tliis  remedy  was  resorted  to  with  increasing 
frequency,  and  with  the  development  of  equity  jurisprudence, 
which  has  taken  place  since  his  time,  it  is  well  said  that  the 
writ  of  injunction  has  become  the  right  arm  of  the  court.  It 
was  formerly  rarely  issued  in  the  case  of  a  nuisance  until 
plaintiff's  right  had  been  established  at  law,  and  the  doctrine 
which  now  seems  to  prevail  in  Pennsylvania,  that  this  writ 
is  not  matter  of  right,  but  of  grace,  to  a  large  extent  jDrevailed. 
But  now  a  suit  at  law  is  no  longer  a  necessary  preliminary, 
and  the  right  to  an  injunction,  in  a  proper  case,  in  England 
and  most  of  the  States,  is  j  ust  as  fixed  and  certain  as  the  right 
to  any  other  provisional  remedy.  The  writ  can  rightfully  be 
demanded  to  prevent  irreparable  injury,  interminable  litiga- 
tion and  a  multiplicity  of  suits,  and  its  refusal  in  a  proper 
case  would  be  error  to  be  corrected  by  an  appellate  tribunal. 
It  is  matter  of  grace  in  no  sense  except  that  it  rests  in  the 
sound  discretion  of  the  court,  and  that  discretion  is  not  an 
arbitrary  one.  If  improperly  exercised  in  any  case  either  in 
granting  or  refusing  it,  the  error  is  one  to  be  corrected  upon 
appeal."     Camphell  v.  Seaman,  63  1^.  Y.  568,  582. 

Damages. —  "  In  an  action  for  a  nuisance  the  general  rule 
is,  that  the  plaintiff's  measure  of  damages  is  the  loss  actually 
sustained.  .  .  .  One  who,  therefore,  in  the  exercise  of 
what  he  believes  to  be  his  rights,  commits  a  nuisance  against 
the  property  of  another,  is  bound  only  for  the  actual  damages 
suffered,  including  the  trouble  and  expense  of  establishing  the 
right  to  have  the  nuisance  abated.  .  .  .  And  a  man  may 
not,  with  impunity,  invade  the  premises  of  another  simply 
because  the  damage  may  not  be  appreciable.  The  law  permits 
the  recovery  of  nominal  damages  at  least,  as  evidence  of  the 
plaintiff's  right."*  4  Wait's  Act.  &  Def.  776. 

In  Barricl'  v.  Schifferdec'ker,  123  IST.  Y.  52,  the  court  hav- 
ing denied  equitable  relief,  it  was  held  that  the  aggregate 
damage  suffered  by  the  plaintiff  was  the  rental  value  to  the 
time  of  the  trial  and  the  cost  of  prevention,  the  court  (p.  56) 
saying:  "  The  rental  value  to  the  time  of  the  trial,  and  in 
addition  the  sum  necessary  to  repair  plaintiff's  house  and  put 


190  Negligence. 

it  in  a  condition  which  would  prevent  future  injury  from  the 
same  cause  were  first  shown,  and  their  aggregate  would  cover 
the  total  damages  possible  to  be  sustained.  When  to  that, 
permanent  depreciation  is  added,  damages  are  given  for  what 
cannot  occur.  The  cost  of  prevention  and  the  result  of  con- 
tinuance cannot  both  be  given.  The  award  of  the  one  must 
necessarily  exclude  the  other." 

"  For  injuries  permanently  affecting  realty,  the  measure  of 
damages  is  the  difference  between  w^hat  the  property  would 
have  sold  for  before  and  after  the  injury. 

"  For  nuisances  affecting  the  enjoyment  and  occupancy  of 
realty,  the  measure  of  damages  is  generally  the  loss  of  rents 
or  the  depreciation  in  rental  value."  XVI.  Am.  &  Eng.  Enc. 
of  Law  (1st  ed.),  984.  See  also  Francis  v.  Schoellkopf,  53 
N.  Y.  152. 


NEGLIGENCE 

Defined. —  "Actionable  negligence  is  the  inadvertent  fail- 
ure of  a  legally  responsible  person  to  use  ordinary  care  under 
the  circumstances  in  observing  or  performing  a  noncontractual 
duty,  implied  by  law,  Avhich  failure  is  the  proximate  cause 
of  injury  to  a  person  to  whom  the  duty  is  due."  XVI.  Am. 
&  Eng.  Enc.  of  Law  (1st  ed.),  389. 

"  Negligence,  constituting  a  cause  of  civil  action,  is  such  an 
omission,  by  a  responsible  person,  to  use  that  degree  of  care, 
diligence  and  skill  which  it  was  his  legal  duty  to  use  for  the 
protection  of  another  person  from  injury  as,  in  a  natural  and 
continuous  sequence,  causes  unintended  damage  to  the  latter." 
Shearman  &  Kedfield  on  Negligence  (5th  ed.),  §  3. 

Essential  elements. —  A  cause  of  action  for  negligence  de- 
pends upon  the  concurrence  of  negligence  and  damage,  and  is 
established  by  proof  of : 

1.  A  legal  duty  to  use  care. 

2.  A  breach  of  that  duty. 

3.  Damage  proximately  resulting. 


Negligence.  191 

Duty  owing. —  "  There  is  no  negligence  in  a  legal  sense 
which  can  give  a  right  of  action,  unless  there  is  a  violation 
of  a  legal  duty  to  exercise  care.  The  duty  may  exist  as  to 
some  persons,  and  not  as  to  others,  depending  upon  peculiar 
relations  and  circumstances."  Larmore  v.  Croiun  Point  Iron 
Co.,  101  N.  Y.  391,394. 

"  iSTegligence  is  a  violation  of  the  obligation  which  enjoins 
care  and  caution  in  what  we  do.  But  this  duty  is  relative, 
and  where  it  has  no  existence  between  particular  parties, 
there  can  be  no  such  thing  as  negligence  in  the  legal  sense  of 
the  term."  Tonawanda  B'y  Co.  v.  Munger,  5  Denio,  255, 
266. 

Purpose  or  intent. —  "  In  negligence,  .  .  .  ,  there  is  no 
purpose  to  do  a  wTongful  act,  or  to  omit  the  performance  of 
a  duty.  There  is,  however,  an  absence  of  proper  attention, 
care  or  skill.  It  is  strictly  nonfeaBance,  not  malfeasance." 
Gardner  v.  Ileartt,  3  Denio,  232,  236. 

"  Since  negligence  necessarily  implies  inadvertence  and 
lack  of  intent,  such  an  expression  as  '  wilful  negligence  '  is  a 
contradiction  in  terms  and  can  mean  nothing.  Its  use  arises 
from  a  confusion  of  ^  negligence  '  with  '  neglect,'  which  latter 
may  be  intentional ;  .  .  .  The  distinction  between  negli- 
gence and  wilful  tort  is  important  to  be  observed,  not  only  in 
order  to  avoid  a  confusion  of  principles,  but  it  is  necessary  in 
determining  the  question  of  damages,  since  in  case  of  an  in- 
jury by  the  former,  damages  can  only  be  compensatory; 
while  in  the  latter  they  may  also  be  punitory,  vindictive,  or 
exemplary.  The  distinction  is  also  needful  because  of  the 
defences  w^hich  may  be  set  up ;  contributory  negligence  of  the 
plaintiff  is  no  bar  to  an  action  for  a  wilful  tort,  though  it  is 
a  complete  bar  to  an  action  for  negligence."  XVI.  Am.  & 
Eng.  Enc.  of  Law  (1st  ed.),  394. 

In  the  case  of  Kain  v.  Larhin,  56  Hun,  79,  the  action  was 
brought  under  §  1902  of  the  Code  of  Civil  Procedure,  to 
recover  damages,  alleged  to  have  been  caused  by  the  wrongful 
act  of  the  defendant.    "  The  defendant,  w^ho  was  acting  as  an 


192  Negligence. 

officer,  told  Kain,  the  deceased,  to  go  about  his  business  and 
shoved  him  o£P  the  sidewalk,  Kain  caiiie  back  and  defendant 
again  told  him  to  go  home.  He  said  defendant  could  not 
make  him.  Then  defendant  shot  him."  In  reversing  judg- 
ment in  favor  of  the  defendant,  the  General  Term  of  the 
Supreme  Court  (p.  80)  said:  "The  Code  of  Civil  Proced- 
ure, section  1902,  authorizes  this  action  in  case  the  defendant 
would  have  been  liable  to  an  action  in  favor  of  the  decedent 
if  death  had  not  ensued.  Section  1899  shows  that  the  defend- 
ant is  liable  to  this  action,  although  he  might  also  be  crim- 
inally prosecuted. 

"  .  .  .  The  learned  justice  who  tried  the  cause  charged 
that  the  plaintiff  could  not  recover  if  the  decedent  in  any 
degree  contributed  to  the  injury.  In  thus  charging  he  applied 
the  rule  which  governs  actions  based  solely  on  the  negligence 
of  the  defendant.  .  .  .  But  this  rule  does  not  apply  to 
an  action  for  injuries  caused  by  an  assault  of  the  defendant." 

Care  and  caution. —  In  Coggs  v.  Barnard,  2  Ld.  Raym. 
909,  Lord  Holt  divided  negligence,  as  applied  to  bailments, 
into  three  classes  or  grades,  viz.,  gross,  ordinary  and  slight. 
In  those  cases  wh^re  the  bailment  was  exclusively  for  the 
benefit  of  the  bailor,  the  bailee  was  responsible  only  for  grosa 
negligence ;  in  other  words,  the  bailee  was  required  to  exer- 
cise only  slight  care.  In  those  cases  where  the  bailment  was 
for  the  benefit  of  bailor  and  bailee,  the  bailee  was  liable  for 
ordinary  negligence,  and  hence  was  required  to  exercise  ordi- 
nary care.  In  those  ca.ses  where  the  bailment  was  for  the 
exclusive  benefit  of  the  bailee,  the  bailee  was  responsible  for 
slight  negligence,  and  hence  was  required  to  use  great  care. 

Such  classification,  in  the  law  of  torts,  is  of  no  practical 
value,  and  lias  been  abandoned  by  the  courts  generally. 

"  The  theory  that  there  are  three  degrees  of  negligence, 
described  by  the  terms  slight,  ordinary,  and  gross,  has  l)een 
introduced  into  the  common  law  from  some  of  the  commen- 
tators on  the  Roman  law.  It  may  be  doubted  if  these  terms 
can  be  usefully  applied  in  practice.     Their  meaning  is  not 


fixed,  or  capable  of  being  so.  One  degree,  thus  described, 
not  only  may  be  confounded  with  another,  but  it  is  quite 
impracticable  exactly  to  distinguish  them.  Their  significai- 
tion  necessarily  varies  according  to  circumstances,  to  whose 
influence  the  courts  have  been  forced  to  yield,  until  there  are 
so  many  real  exceptions  that  the  rules  themselves  can  scarcely 
be  said  to  have  a  general  operation.  In  Storer  v.  Goiuen,  18 
Maine  R.  177,  the  Supreme  Court  of  Maine  say :  '  How  much 
care  will,  in  a  given  case,  relieve  a  party  from  the  imputation 
of  gross  negligence,  or  what  omission  will  amount  to  the 
charge,  is  necessarily  a  question  of  fact,  depending  on  a  great 
variety  of  circumstances  which  the  law  cannot  exactly  define.' 
Mr.  Justice  Story  (Bailments,  §  11),  says:  '  Indeed,  what  is 
common  or  ordinary  diligence  is  more  a  matter  of  fact  than 
of  law.'  If  the  law  furnishes  no  definition  of  the  terms  gross 
negligence,  or  ordinary  negligence,  which  can  be  applied  in 
practice,  but  leaves  it  to  the  jury  to  determine,  in  each  case, 
what  the  duty  was,  and  what  omissions  amount  to  a  breach 
of  it,  it  would  seem  that  imperfect  and  confessedly  unsuc- 
cessful attempts  to  define  that  duty,  had  better  be  aban- 
doned."   Steamboat  New  Wo7^Id  v.  King,  16  How.  469,  474. 

"  The  difficulty  of  defining  gross  negligence,  and  the  in- 
trinsic uncertainty  j^ertaining  to  the  question  as  one  of  law, 
and  the  utter  impracticability  of  establishing  any  precise  rule 
on  the  subject,  renders  it  unsafe  to  base  any  legal  decision  on 
distinctions  of  the  degrees  of  negligence.  Certainly  before 
cases  are  made  to  turiil)y  the  verdict  of  juries,  upon  any  such 
distinction,  the  judges  should  he  able  to  define,  with  some 
precision,  what  they  mean  by  gross  negligence,  slight  negli- 
gence and  ordinary  negligence.  It  will  be  seen  on  examining 
the  many  cases  reported,  where  the  question  has  arisen,  that 
this  has  been  found  utterly  impracticable  by  the  judges,  when 
called  upon  to  instruct  juries  on  the  question,  and  also  when 
called  on  to  declare  the  law  more  carefully  in  bank. 

"  Xegligence  is  essentially  always  a  question  of  fact,  and 
every  case  depends  necessarily  upon  its  own  particular  cir- 
cumstances. Wliat  is  negligent  in  a  given  case,  may  easily  be 
13 


194  Negligence. 

affirmed  bj  a  jury;  but  in  what  degree  the  negligence  con- 
sists, in  any  scale  of  classification  of  degrees  of  negligence, 
is  not  so  easily  determined  —  will  ordinarily  be  a  matter  of 
pure  speculation  and  of  no  practical  consequence."  Perkins 
V.  N.  Y.  C.  B.  R.  Co.,  24  K  Y.  196,  207. 

Standard  of  duty. —  "  In  cases  of  pure  tort,  there  is  only 
one  standard  of  conduct  (that  of  ordinary  diligence),  and 
only  one  criterion  of  diligence  (the  conduct  of  the  prudent 
man)."    Jaggard  on  Torts,  II.,  818. 

"  The  standard  of  duty  is  not  the  foresight  and  caution 
which  this  or  that  particular  man  is  capable  of,  but  the  fore- 
sight and  caution  of  a  prudent  man  —  the  average  prudent 
man,  or,  as  our  books  rather  affect  to  say,  a  reasonable  man  — 
standing  in  this  or  that  man's  shoes."  Pollock  on  Torts 
(7th  ed.),  430. 

"  A  careful  man  is  guided  by  a  reasonable  estimate  of 
probabilities.  His  precaution  is  measured  by  that  which 
appears  likely  in  the  usual  course  of  things.  The  rule  does 
not  require  him  to  use  every  possible  precaution  to  avoid 
injury  to  others.  He  is  only  required  to  use  such  reason- 
able precautions  to  prevent  accidents  as  would  ordinarily  be 
adopted  by  careful,  prudent  persons  under  like  circum- 
stances." Schmidt  v.  Steinway  &  Hunter's  Point  R'y  Co., 
132  K  Y.  566,  568. 

"  So  far  as  civil  liability  is  concerned,  .  .  .  ,  if  a 
man's  conduct  is  such  as  wovild  be  reckless  in  a  man  of  ordi- 
nary prudence,  it  is  reckless  in  him.  Unless  he  can  bring 
himself  within  some  broadly  defined  exception  to  general 
rules,  the  law  deliberately  leaves  his  idiosyncracies  out  of 
account,  and  peremptorily  assumes  that  he  has  as  much  ca- 
pacity to  judge  and  to  foresee  consequences  as  a  man  of  or- 
dinary prudence  would  have  in  the  same  situation."  Coni- 
monwealth  v.  Pierce,  138  Mass.  165,  176. 

The  standard  man. —  "  The  standard  man  is  no  individual 
man,  but  an  abstract  or  ideal  man  of  ordinary  mental  and 
physical  capacity  and  ordinary  prudence.     The  particular 


Negligence.  195 

man  whose  duty  of  care  is  to  be  nieasiu'ed  does  not  furnish 
the  standard.  He  may  fall  below  it  in  capacity  and  pru- 
dence, yet  the  law  takes  no  account  of  that,  but  requires  that 
he  should  come  up  to  the  standard  and  his  duty  be  measured 
thereby."     Williams  v.  Hmjs,  143  N.  Y.  442,  454. 

Rule  as  to  carriers  of  passengers.—  "  It  is  the  settled  rule 
of  common  law  throughout  the  United  States,  and  probably 
also  in  Great  Britain  and  Ireland,  that  common  carriers  of 
persons,  and  especially  railway  companies,  are  liable  for  any 
damage  suffered  by  their  passengers,  which  is  proximately 
caused  by  the  failure  of  such  carriers  to  use  the  highest  degree 
of  prudence,  and,  in  some  cases,  the  utmost  human  skill  and 
foresight.  This  precise  language  is  constantly  used  in  charg- 
ing juries,  and  it  is  sustained  by  such  controlling  authority 
as  to  make  it  useless  to  discuss  its  j^ropriety  at  any  length. 
But  while  these  w^ords  cannot  be  excepted  to,  the  current  of 
decisions  shows  that  a  carrier  is  entitled  to  have  them  ex- 
plained to  the  jury.  The  courts  do  not  hold  that  carriers  are 
bound  to  use  the  highest  degree  of  prudence  or  skill  which 
could  be  conceived  of  as  possible  to  man.  They  are  only  held 
to  the  highest  degree  wdiich  has  been  demonstrated  by  experi- 
ence to  be  practicable."  Shearman  &  Redfield  on  Negli- 
gence (5th  ed.),  §  51. 

"  The  cases  in  this  court  of  Brown  v.  N.  Y.  Central  Rail- 
road Company  (18  N.  Y.,  408),  and  Deyo  v.  N.  Y.  Central 
Railroad  Company  (34  id.),  were  decided  upon,  and  reiterate 
the  well  settled  rule  that  "  passenger  carriers  bind  themselves 
to  carry  safely  those  w'hom  they  take  into  their  coaches,  as  far 
as  human  care  and  foresight  will  go,  that  is,  to  the  utmost 
care  and  diligence  of  very  cautious  persons.' 

"  Applying  the  rule  to  the  case  before  us,  it  cannot  be 
doubted  that  the  jury  were  authorized,  from  the  testimony 
adduced  by  the  plaintiff,  to  find  that  if  the  conductor  had 
exercised  such  a  degree  of  care  and  diligence,  the  injury  to 
the  plaintiff  would  not  have  occurred.  He  saw  the  truck 
[a  hook  and  ladder  truck  running  to  a  fire]  behind  his  car 


196  Negligence. 

on  the  same  track  with  it,  and  approaching  it  with  great 
rapidity,  and  it  was  within  15  or  20  feet  of  it  when  he 
stopped  the  car,  and  calling  upon  the  plaintiff  [who  was  a 
passenger]  to  leave  it,  led  or  guided  her  out  on  the  rear  plat- 
form where  she  was  struck. 

"  The  street  was  so  obstructed  by  a  car  to  the  west  of  the 
truck  and  by  a  vehicle  carrying  an  iron  boiler,  and  carts  to 
the  east  of  it,  that  the  passage  of  the  truck  was  confined  to 
the  track  on  which  it  was  running,  and  it  was  impossible  for 
those  in  charge  of  it  to  stop  or  turn  it  so  as  to  avoid  collision 
within  the  space  between  it  and  the  car,  at  the  time  the  ear 
was  stopped.  It  w^as  the  duty  of  the  conductor  in  the  exercise 
of  that  foresight  as  to  possible  dangers  which  carriers  of  pas- 
sengers are  bound  to  observe,  to  notice  and  consider  these 
circumstances ;  and  his  conduct  in  disregarding  them,  or  in 
stopping  his  car  in  view  of  them,  and  in  bringing  a  pas- 
senger out  of  it  on  to  the  rear  platform,  cannot  be  regarded 
as  the  exercise  of  the  '  utmost  care  and  diligence  of  very 
cautious  persons.'  "  Maverich  v.  EigJiih  Ave.  R.  R.  Co.,  36 
:N".  Y.  378,  381. 

"  Railroad  companies,  whose  cars  are  drawn  by  steam,  at 
a  high  rate  of  speed,  are  held  to  the  greatest  skill,  care  and 
diligence  in  the  manufacture  of  tlieir  cars  and  engines,  and 
in  the  management  of  their  roads,  because  of  the  great  danger 
from  their  hazardous  mode  of  conveyance  to  human  life  in 
case  of  any  negligence.  But  the  same  degTce  of  care  and  skill 
is  not  required  from  carriers  of  passengers  by  stage  coaches 
{Hegeman  v.  ^Yestern  Railroad  Corporation,  13  IST.  Y.  9); 
and,  for  the  same  reason,  is  not  required  from  the  carriers  of 
passengers  upon  street  cars  drawn  by  horses.  The  degree  of 
care  required  in  any  case  must  have  reference  to  the  subject- 
matter,  and  must  be  such  only  as  a  man  of  ordinary  pru- 
dence and  capacity  may  be  expected  to  exercise  in  the  same 
circumstances.  In  some  cases  this  rule  will  require  the  high- 
est degree  of  care,  and  in  others  much  less."  Unger  v.  Forty- 
second  Street,  etc.,  R.  R.  Co.,  51  X.  Y.  497,  50l! 

"  This  accident  happened  at  a  place  where  the  defendant's 
road  crossed  the  tracks  of  a  steam  railroad,  by  the  steam 


iSeoligence,  197 

engine  coming  in  contact  with  its  car  containing  the  plaintiff 
and  other  passengers.  .  .  .  That,  under  such  circum- 
stances, the  defendant  was  bound  to  use  the  highest  degree 
of  care  and  prudence,  the  utmost  human  skill  and  foresight, 
is  the  settled  law."  Coddington  v.  Brooklyn  Crosstown  B.  R. 
Co.,  102  X.  Y.  66,  68. 

In  an  action  to  recover  damages  alleged  to  have  been  sus- 
tained by  plaintiif  wdien  a  passenger  upon  defendant's  road, 
in  consequence  of  the  falling  upon  him  of  a  clothes-wringer 
which  had  been  placed  by  another  passenger  in  a  rack  over 
plaintiff's  seat,  the  court  said :  "  In  looking  out  for  dangers 
arising  from  causes  such  as  this,  we  do  not  think  that  carriers 
of  passengers  are  to  be  held  to  the  exercise  of  the  highest  care 
which  human  vigilance  can  give.  That  measure  of  care  has 
been  spoken  of  as  due  from  them  in  the  actual  transportation 
of  the  passenger,  and,  in  regard  to  the  results  naturally  to  be 
apprehended  from  a  failure  to  furnish  safe  road-beds,  proper 
machinery,  perfect  cars  or  coaches,  and  things  of  that  nature. 
But,  in  regard  to  a  danger  of  this  kind,  a  carrier  of  passen- 
gers is,  we  think,  held  to  a  less  strict  measure  of  vigilance. 
Reasonable  care  (to  be  measured  by  the  circumstances  sur- 
rounding each  case),  to  prevent  accidents  of  this  nature,  is 
all  that  is  demanded,  ..."  Morris  v.  N.  Y.  C.  &  H. 
R.  R.  R.  Co.,  106  K  Y.  678,  679.  See  also  Palmer  v.  Penn- 
sylvania Co.,  Ill  N.  Y.  488. 

"  The  plaintiff  had  claimed,  as  the  act  of  negligence  for 
which  the  defendant  was  liable  to  him  in  damages,  that  the 
car,  in  which  he  was  a  passenger  at  the  time,  was  '  suddenly, 
negligently  and  carelessly  driven  around  a  curve  in  the  track 
upon  which  it  was  being  moved  over  a  switch;  '  whereby  he 
was  throviTi  from  the  car  and  sustained  certain  personal  in- 
juries. The  controversy,  upon  the  facts,  was  as  to  whether 
the  accident  had  happened  to  the  plaintiff,  as  he  alleged  and 
testified ;  or  whether,  as  the  defendant  adduced  evidence  to 
show,  he  was  throwTi  down  in  attempting  to  get  off  the  car, 
while  it  was  in  motion.  In  his  charge  to  the  jury  the  trial 
judge  had  instructed  them  that  the  duty  owing  to  the  plain- 
tiff was,  '  that  of  reasonable  care;   that  is,  the  degree  of  care 


198  l^EGLIGENCE. 

which  it  is  presumed  that  an  ordinarily  careful  and  prudent 
man  would  exercise  in  the  circumstances  by  wdiich  he  is  sur- 
rounded .  .  .  the  degree  of  ordinary  and  reasonable  care 
to  look  out  for  the  safety  of  others.'  At  the  close  of  his 
charge  the  plaintiff  made  the  request,  that  he  should  charge 
the  jury  that,  *  in  respect  to  carrying  passengers  a  railroad 
company  is  bound  to  exercise  all  the  care  and  skill  which 
human  prudence  and  foresight  can  suggest  to  secure  the  safety 
of  their  passengers.'  The  court  so  charged  and  the  defendant 
excepted. 

********* 

"  I  think  that  portion  of  the  charge  was  erroneous,  when 
taken  in  connection  with  the  circumstances  under  which  it 
was  made.  The  jury  had  already  been  instructed  that  the 
duty  owing  to  the  plaintiff  by  the  defendant  w^as  to  exercise 
that  reasonable  care,  which  an  ordinarily  careful  man  would 
exercise  under  the  circumstances  by  which  he  was  surrounded. 
But  when  they  were  finally  instructed,  .  .  .  ,  that  the 
defendant  was  bound  to  '  exercise  all  the  care  and  skill  which 
human  prudence  and  foresight  could  suggest,  to  secure  the 
safety  of  its  passengers,'  they  might  reasonably  infer  that  the 
obligation  resting  upon  the  defendant,  with  respect  to  the 
degree  of  care  and  skill  to  be  exercised  at  the  time  of  the 
accident,  was  as  strict  as  the  request  made  it.  But  that  w^ould 
not  be  the  correct  rule.  The  obligation  of  carriers  of  passen- 
gers to  exercise  the  highest  degree  of  care,  which  human  pru- 
dence and  foresight  can  suggest,  only  exists  wuth  respect  to 
those  results  which  are  naturally  to  be  apprehended  from 
unsafe  road-beds,  defective  machinery,  imperfect  cars  and 
other  conditions  endangering  the  success  of  the  undertaking. 
In  every  case,  the  degree  of  care  to  be  exercised  is 
dependent  upon  the  circumstances  and,  if  the  accident  is 
attributable  to  the  existence  of  defects  in  the  road,  or  in  the 
mechanical  appliances  availed  of  for  the  operation  of  the  rail- 
road, by  reason  of  which  there  was  a  possibility  of  loss  of  life 
or  limb  to  the  traveling  public,  the  strict  rule  requiring 
the  highest  degree  of  care  and  of  human  skill  would  be 
applicable. 


Negligence.  199 

"  .  .  .  Under  these  circumstances,  the  defendant  was 
only  liable  for  the  failure  of  the  driver  to  use  that  skill  and 
care  which  would  be  required  of  an  ordinarily  careful  and 
prudent  man.  This  the  trial  judge  had  correctly  charged  and 
he  was  in  error  in  charging  further  as  requested  by  the  plain- 
tiff ;  however  the  rule,  as  stated  in.  the  request,  might  be  cor- 
rect under  different  circiunstances."  Stierle  v.  Union  Rail- 
way Co.,  156  K  Y.  70,  72. 

Exemption  contracts  by  common  carriers. —  ''As  is  well 
known,  the  general  rule  of  the  Federal  courts  is  to  deny  recog- 
nition to  contracts  assuming  to  exempt  common  carriers  from 
liability  for  injury  to  passengers  or  their  property  through 
negligence,  on  the  ground  that  such  agreements  are  contrary 
to  public  policy.  The  law  of  New  York,  and  of  some  of  the 
other  States,  is  to  the  contrary.  In  New  York,  however,  it  is 
required  that,  in  order  to  secure  immunity  from  liability  for 
its  negligence,  or  that  of  its  agents,  the  carrier's  contract  must 
be  definitely  expressed.  (Kenney  v.  R.  R.  Co.,  125  N.  Y. 
422)."    K  Y.  Law  Journal,  April  4,  1900. 

Facts  and  law. —  "  The  court  is  required  to  charge  the  law, 
and  the  jury  to  find  the  facts.  The  law,  however,  does  not 
state  what  facts  proved  will  show  the  absence  of  ordinary 
care.  It  could  not  do  so  as  applicable  to  every  case  which 
arises.  The  cases  involving  this  question  are  so  different  in 
their  facts,  so  various,  so  complicated,  and  arising  under  so 
many  different  circumstances,  that  it  would  be  utterly  im- 
possible to  lay  do^\Ti  any  general  principle  of  law,  by  which 
every  special  case  could  be  measured  and  tested  as  to  the  fact 
of  negligence,  and  which  would  enable  a  judge  to  say  to  the 
jury,  as  matter  of  law,  such  and  such  facts  show  the  absence 
or  presence  of  ordinary  care."  Bridger  v,  A.  &  8.  R.  R.  Co., 
25  S.  C.  24,  30. 

"  The  question  whether  or  not  negligence  existed  is  gen- 
erally a  question  for  the  jury.  It  has  been  held  that  the  case 
should  always  go  to  the  jury  (1)  when  the  facts  which,  if 
true,  would  constitute  evidence  of  negligence,   are   contro- 


200  l!^EGXIGENCE. 

verted;  (2)  where  such  facts  are  not  controverted,  but  where 
there  might  be  a  fair  difference  whether  the  inference  of  neg- 
ligence should  be  drawn ;  ( 3 )  when,  at  the  same  time  the  facts 
are  in  dispute,  and  the  inferences  to  be  drawn  from  them  are 
doubtful.  In  other  words,  the  question  of  negligence  is  for 
the  jury  when,  there  is  substantial  doubt  as  to  the  facts,  or  as 
to  the  inferences  to  be  drawn  from  them.  Yv  hen,  however,  it 
is  assumed  that  the  evidence  which  is  favorable  to  the  plain- 
tiff is  true,  and  no  fair  inference  that  the  defendant  had  been 
guiltv  of  a  failure  of  duty  could  be  drawn  from  such  evi- 
dence, the  judge  should,  according  to  the  practice  of  the 
court,  decide  the  case  by  peremptory  instructions  to  the  jury." 
Hathaway  v.  East  Tennessee,  V.  &  G.  R.  R.,  29  Fed.  Rep. 
489. 

"  There  is  no  fixed  standard  in  the  law  by  which  a  court 
is  enabled  to  arbitrarily  say  in  every  case  what  conduct  shall 
be  considered  reasonable  and  prudent,  and  what  shall  consti- 
tute ordinary  care,  under  any  and  all  circumstances. 
The  policy  of  the  law  has  relegated  the  determination  of  such 
questions  to  the  jury,  under  proper  instructions  from  the 
court.  It  is  their  pro^dnce  to  note  the  special  circumstances 
and  surroundings  of  each  particular  case,  and  then  say 
whether  the  conduct  of  the  parties  in  that  case  was  such  as 
would  be  expected  of  reasonable,  prudent  men,  under  a  simi- 
lar state  of  affairs.  When  a  given  state  of  facts  is  such  that 
reasonable  men  may  fairly  differ  upon  the  question  as  to 
whether  there  was  negligence  or  not,  the  determination  of  the 
matter  is  for  the  jury.  It  is  only  where  the  facts  are  such 
that  all  reasonable  men  must  draw  the  sam£  conclusions  from 
them,  that  the  question  of  negligence  is  ever  considered  as  one 
of  law  for  the  court."  Grand  Trunk  R'y  Co.  v.  Ires,  144 
U.  S.  408,  417. 

"  Negligence  is  ordinarily  a  question  for  the  jury,  but  only 
when  the  facts  would  authorize  a  jury  to  infer  it."  Sutton 
V.  N.  Y.  C.  &  H,  R.  R.  R.  Co.,  66  N.  Y.  243,  249. 

"  There  are,  no  doubt,  cases  depending  entirely  upon  ques- 
tions of  negligence,  where  the  proof  is  so  clear  that  the  court 


Kegligexce.  201 

ia  justified  in  assuming,  as  a  matter  of  la-vr,  that  the  negli- 
gence is  established.  But  questions  of  that  natui'e  are  pecu- 
liarly appropriate  for  the  consideration  of  a  jury,  and  courts 
are  very  justly  cautious  about  encroaching  upon  their  prov- 
ince in  this  respect."  Moore  v.  Westet-velt,  21  jST.  Y.  103, 
106. 

"  The  question  of  negligence  depends  very  much  upon  cir- 
cumstances, and  is  addressed  to  the  judgment  of  men  of  ordi- 
nary prudence  aud  discretion,  and  is  ordinarily  for  the  jury. 
When  the  inferences  to  be  dra"v\Ti  from  the  proof  are  not  cer- 
tain and  incontrovertible  it  cannot  be  decided  as  a  question  of 
law  by  directing  a  verdict  or  nonsuit,  but  must  be  submitted 
to  the  jury. 

"  I^Tegligence  is  a  question  of  fact  and  should  usually  be 
decided  as  such,  especially  whenever  men  of  ordinary  pru- 
dence and  discretion  might  differ  as  to  the  character  of  the 
act,  under  the  circumstances  of  the  case,  the  positions  and 
condition  of  the  parties."  Thurher  v.  Harlem  B.,  M.  &  F. 
B.  B.  Co.,  60  iv\  Y.  326,  331. 

Presumption  of  negligence. —  As  a  general  rule,  negligence 
must  be  proved,  and  is  not  presumed.  But  there  are  cases 
where  the  maxim  res  ipsa  loquitur  applies,  that  is  proof  of 
the  accident  is  sufiicient  to  establish  negligence  in  the  absence 
of  explanation  by  the  defendant. 

"  As  a  rule  there  must  be  affirmative  proof  of  negligence 
on  the  part  of  the  defendant  to  support  an  action ;  for,  where 
it  is  a  perfectly  even  balance  on  the  evidence  whether  the 
injury  has  resulted  from  the  want  of  proper  care  on  the  part 
of  one  side  or  the  other,  the  party  who  founds  his  claim  on 
the  imputation  of  negligence  fails  to  establish  it.  However, 
where  the  actual  thing  causing  the  accident  is  solely  under  the 
management  of  the  defendant,  and  the  accident  is  one  which 
would  not,  in  all  probability,  happen  if  the  person  managing 
the  thing  was  using  due  care,  it  has  been  held  that  the  mere 
occurrence  of  the  accident  is  sufficient  prima  facie  proof  of 
negligence  to  impose  on  the  defendant  the  onus  of  rebutting 
it."    Addison  on  Torts,  21. 


202  Negligence. 

''  While  it  is  true  as  a  general  proposition  that  the  burden 
of  showing  negligence  on  the  part  of  the  defendant  occasion- 
ing an  injury,  rests  in  the  first  instance  upon  the  plaintiff, 
,  .  .  ,  when  he  has  shown  a  situation  which  could  not 
have  been  produced  except  by  the  operation  of  abnormal 
causes,  the  onus  then  rests  upon  the  defendant  to  prove  that 
the  injury  was  caused  without  his  fault."  SeyhoU  v.  N.  Y., 
L.  E.  &  \y.  R.  R.  Co.,  95  K  Y.  5G2,  568. 

"  It  has  been  held  that  where  a  building  adjoining  a  street 
falls  into  the  street  in  the  absence  of  explanatory  circum- 
stances negligence  will  be  presumed,  and  the  burden  is  placed 
upon  the  o\\Tier  of  showing  the  use  of  ordinary  care;  that 
where  a  plaintiff  was  passing  on  a  highway  under  a  railroad 
bridge  when  a  brick  fell  from  one  of  the  pilasters  upon  which 
an  iron  girder  of  the  bridge  rested,  striking  him  upon  the 
shoulder,  causing  injury,  negligence  would  be  presumed  ;  that 
where  a  barrel  rolled  out  of  the  window  of  a  warehouse  onto 
a  street,  injuring  a  person  passing,  negligence  would  be  pre- 
sumed ;  that  where  a  person,  while  walking  along  the  street 
in  front  of  a  building,  was  struck  by  a  falling  chisel,  the  pre- 
sumption of  negligence  is  sufficient  to  call  for  an  explanation  ; 
that  where  plaintiff  was  injured  while  walking  on  the  side- 
walk of  a  street  immediately  under  the  defendant's  railroad 
by  being  struck  with  a  heavy  piece  of  metal  which  fell  from 
one  of  defendant's  cars  passing  above,  that  from  the  nature 
of  the  accident  negligence  might  be  inferred,  etc."  VoR-mar 
V.  M.  R.  Co.,  134N.  Y.  418,  420.  See  also  Hogan-  v.  Man- 
hattan R.  Co.,  149  N.  Y.  23. 

"  Primarily,  it  is  argued  that  the  principle  which  usually 
passes  under  the  name  of  'res  ipsa  loquitur/  applies  only  to 
cases  where  the  relation  between  the  parties  is  the  contractual 
one  of  carrier  or  bailee,  or  in  which  the  party  injured  has 
been  injured  while  on  a  public  highway.  While  there  are 
some  expressions  to  be  found  in  text  books  and  decisions 
which  seem  to  support  this  claim,  in  my  judgment  it  is 
unfounded  and  the  application  of  the  principle  depends  on 
the  circumstances  and  character  of  the  occurrence,  and  not 


Negligence.  203 

on  the  relation  between  the  parties,  except  indirectly  so  far  rnc  >xii-«Y>. 
as  that  relation  defines  the  measure  of  duty  imposed  on  the  „ 
defendant.  ...  In  Breen  v.  N.  Y.  Central,  etc.,  R.  R. 
Co.  (109  E".  Y.  297),  it  is  said:  'There  must  be  reasonable 
evidence  of  negligence,  but  when  the  thing  causing  the  injury 
is  shown  to  be  under  the  control  of  a  defendant,  and  the  acci- 
dent is  such  as,  in  the  ordinary  course  of  business,  does  not 
happen  if  reasonable  care  is  used,  it  does,  in  the  absence  of 
explanation  by  the  defendant,  afford  sufficient  evidence  that 
the  accident  arose  from  want  of  care  on  its  part.'  I  can  see 
no  reason  why  the  rule  thus  declared  is  not  applicable  to  all 
cases  or  why  the  probative  force  of  the  evidence  depends  on 
the  relation  of  the  parties.  Of  course,  the  relation  of  the 
parties  may  determine  the  fact  to  be  proved,  whether  it  be 
the  want  of  the  highest  care  or  only  want  of  ordinary  care, 
and,  doubtless,  circumstantial  evidence,  like  direct  evidence, 
may  be  insufficient  as  a  matter  of  law  to  establish  the  want 
of  ordinary  care,  though  sufficient  to  prove  absence  of  the 
highest  degree  of  diligence."  Griff  en  v.  Manice,  166  JST.  Y. 
188,  193-194. 

Contributory  negligence. —  "  The  general  rule  is,  that  one 
who  receives  an  injury  from  the  negligence  of  another  may 
maintain  an  action  for  his  damages.  Upon  this  rule  a  natural 
and  reasonable  exception  has  been  engrafted,  that  if  the  in- 
jured party,  by  his  own  negligence,  has  contributed  to  the 
injury,  he  cannot  maintain  an  action,  unless  the  negligence 
of  the  other  party  has  been  so  gross  in  its  character  as  to  be 
equivalent  in  law  to  a  wilful  injuring."  Chapman  v.  New 
Haven  R.  R.  Co.,  19  K  Y.  341,  342. 

Defined. — ''  Contributory  negligence,  in  its  legal  significa- 
tion, is  such  an  act  or  omission  on  the  part  of  a  plaintiff, 
amounting  to  a  want  of  ordinary  care,  as,  concurring  or  co- 
operating with  the  negligent  act  of  the  defendant,  is  a  proxi- 
mate cause  or  occasion  of  the  injury  complained  of.  To  con- 
stitute contributory  negligence  there  must  be  a  want  of  ordi- 
nary care  on  the  part  of  the  plaintiff,  and  a  proximate  con- 


204  Negligence. 

nection  between  that  aud  the  injury."     Beach  on  Contrib. 

Keg.,  7. 

Reason  for  the  rule. —  "  If  both  parties  are  negligent;  if 
the  negligence  of  the  plaintiff  concurs  with  that  of  the  defend- 
ant, both  contributing  to  the  result,  neither  court  nor  jury 
are  permitted  to  measure  the  degree  of  contribution,  or  in- 
quire whether  it  was  the  negligence  of  the  one  or  the  other, 
which  was  the  essential  cause  of  death."  Grip  pen  v.  N.  Y. 
Central,  40  N.  Y.  34,  51. 

Care  towards  infirm,  aged  and  young. — "  A  sick  or  aged 
person,  a  delicate  woman,  a  lame  man,  or  a  child,  is  entitled 
to  more  attention  and  care  from  a  railroad  company  than  one 
in  good  health  and  under  no  disability.  They  are  entitled  to 
more  time  in  which  to  get  on  or  off  the  cars ;  they  are  entitled 
to  more  consideration  when  crossing  a  street,  to  the  end  that 
the  cars  shall  not  run  over  them.  All  these  classes  are  en- 
titled to  use  the  streets  and  to  ride  in  the  cars ;  and  such 
haste  in  starting  np,  or  such  speed  in  driving  as  would  be 
reasonable  care  toward  others,  might  well  be  carelessness  and 
neglect  toward  them."  Sheridan  v.  Brooklyn,  &  Newtown 
R.  R.,  36  X.  Y.  39,  42. 

Care  to  be  exercised  by  such  persons. —  '*  In  applying  the 
rule  that  a  person  who  seeks  to  recover  for  a  personal  injury, 
sustained  by  another's  negligence,  must  show  himself  free 
from  fauh,  the  law  discriminates  between  children  and  adults, 
the  feeble  and  the  strong,  and  only  requires  of  each  the  exer- 
cise of  that  degree  of  care  to  be  reasonably  expected  in  view 
of  his  age  and  condition."  Reynolds  v.  N.  Y.  Cen.  &  H. 
R.  R.  r\  Co.,  58  K  Y.  248,  252. 

Doctrine  of  identification. —  The  case  of  Thorogood  v. 
Bryan,  8  C.  B.  115  (overruled,  after  standing  as  authority 
for  almost  forty  years,  in  Mills  v.  Armstrong,  L.  E.  13  App. 
Cas.  1),  introduced  into  English  law  the  rule  that  a  passen- 
ger in  a  public  coach  became  so  identified  with  it  as  to  be 


l^EGLIGENCE.  205 

chargeable  with  the  negligence  of  those  in  control;  that  is, 
their  negligence  was  imputed  to  him  as  contributory  fault,  so 
as  to  jDreclude  recovery  for  an  injury  occasioned  by  the  con- 
curring negligence  of  a  stranger.  Such,  however,  is  not  the 
law  in  New  York,  and  was  criticised  by  Mr.  Justice  Field, 
in  Little  v.  Eackett,  116  U.  S.  366,  375:  "The  truth  is, 
the  decision  in  Thorogood  v.  Bryan  rests  upon  indefensible 
ground.  The  identification  of  the  passenger  with  the  negli- 
gent driver  or  the  owner,  without  his  personal  co-operation 
or  encouragement,  is  a  gratuitous  assumption.  There  is  no 
such  identity.  The  parties  are  not  in  the  same  position.  The 
owner  of  a  public  conveyance  is  a  carrier,  and  the  driver  or 
the  person  managing  it  is  his  servant.  Neither  of  them  is  the 
servant  of  the  passenger,  and  his  asserted  identity  with  them 
is  contradicted  by  the  daily  experience  of  the  world." 

In  Barrett  v.  Third  Ave.  E.  B.  Co.,  45  N.  Y.  628,  the 
plaintiff  was  injured  while  riding  as  a  passenger  in  a  car  of 
the  defendant,  resulting  from  a  collision  with  a  freight  car 
of  the  Harlem  Railroad  Company,  at  a  point  where  the  two 
roads  intersected.  The  court  (p.  630)  said:  "  There  was  no 
question  of  contributory  negligence  on  the  part  of  the  plain- 
tiff;  she  was  injured  without  fault  on  her  part,  and  the  ques- 
tion upon  the  merits  was,  whether  the  collision  causing  the 
injury  was  exclusively  the  result  of  the  negligence  or  care- 
less acts  of  the  agents  and  servants  of  the  defendant  having 
the  control  and  ma'nagement  of  the  car  in  which  the  plaintiff 
was  a  passenger,  or  of  such  negligence  in  connection  with 
negligence  on  the  part  of  those  in  charge  of  and  controlling 
the  movements  of  the  colliding  car  on  the  Harlem  road.  If 
the  acts  of  the  defendant's  servants  contributed  to  the  injury, 
the  defendant  must  respond  in  damages  to  the  plaintiff, 
although  the  negligent  acts  of  the  persons  in  charge  of  the 
other  car  also  contributed  to  the  same  result,  and  the  com- 
parative degree  in  the  culpability  of  the  two  will  not  affect 
the  liability  of  either.  If  both  were  negligent  in  a  manner 
and  to  a  degree  contributing  to  the  result,  they  are  liable 
jointly  and  severally." 


206  Negligence. 

In  Robinson  v.  N.  Y.  C.  £  H.  R.  R.  R.  Co.,  66  K  Y.  11, 
the  plaintiff  had  accepted  an  invitation  to  ride  with  one 
Conlon,  and  while  so  riding  received  injuries  resulting  from 
a  collision,  at  a  railroad  crossing,  between  the  buggy,  in  which 
she  was  riding,  and  a  train  on  defendant's  road.  The  court 
(page  12)  said:  "The  court  charged  the  jury  that  if  the 
defendant  was  negligent,  and  the  plaintiff  was  free  from 
negligence  herself,  she  was  entitled  to  recover  although  the 
driver  might  be  guilty  of  negligence  which  contributed  to 
the  injury. 

"  In  determining  this  question  it  is  important  to  first  ascer- 
tain the  relation  wdiich  existed  between  the  plaintiff  and 
Conlon,  the  driver.  It  is  very  clear,  and  was  found  by  the 
jury,  that  the  relation  of  master  and  servant  did  not  exist. 
Nor  was  Conlon,  in  any  sense,  the  agent  of  the  plaintiff. 
It  is,  therefore,  the  case  of  a  gratuitous  ride  by  a 
female  upon  the  invitation  of  the  owner  of  a  horse  and  car- 
riage. The  plaintiff  had  no  control  of  the  vehicle,  nor  of  the 
driver  in  its  management.  It  is  not  claimed  but  that  Conlon 
was  an  able-bodied,  competent  person  to  manage  the  estab- 
lishment, nor  that  he  was  intoxicated,  or  in  any  way  unfit 
to  have  charge  of  it.  Upon  what  principle  is  it  that  his  negli- 
gence is  imputable  to  the  plaintiff  ?  It  is  conceded  that  if  by 
his  negligence  he  had  injured  a  third  person,  she  would  not 
be  liable.  .  .  .  True,  she  had  consented  to  ride  with 
him,  but  as  he  w^as  in  every  respect  competent  and  suitable, 
she  was  not  negligent  in  doing  so.  .  .  .  There  was  no 
necessity  for  riding  with  him.  It  w^as  a  voluntary  act  on  the 
part  of  the  plaintiff,  but  it  was  not  an  unlawful  or  negligent 
act.  She  was  injured  by  the  negligence  of  a  third  person, 
and  was  free  from  negligence  herself,  and  I  am  unable  to 
perceive  any  reason  for  imputing  Conlon's  negligence  to  her. 

"  If  his  negligence  contributed  to  the  injury,  he  is  liable 

also  to  an  action,  but  that  does  not  exonerate  the  defendant. 

These  views  proceed,  of  course,  upon  the  assumption 

that  there  was  no  relation  of  principal  and  agent,  or  master 

and  servant.     Nor  were  they  engaged  in  a  joint  enterprise 


Negligence.  207 

in  the  sense  of  mutual  responsibility  for  each  other's  acts, 
as  in  Beck  v.  East  River  Ferry  Company  (6  Robertson, 
82)." 

In  Donnelly  v.  Brooklyn  City  B.  R.  Co.,  109  N.  Y.  16, 
the  plaintiff,  with  one  McNally,  had  driven  from  Fort  Hamil- 
ton to  Brooklyn,  in  a  wagon  drawn  by  one  horse  with  a  load 
of  fish  for  market.  They  returned  about  midnight  along  an 
avenue  in  the  middle  of  which  were  two  tracks  of  the  defend- 
ant, with  a  dirt  road  on  each  side  for  wagons.  MclSTally  was 
driving  and  the  plaintiff  was  sitting  by  his  side.  They  had 
been  on  the  right-hand  track,  when  hearing  a  wagon  approach- 
ing, which  they  thought  was  loaded,  they  turned  and  drove 
upon  the  other  track,  upon  which  they  were  when  they  were 
run  down  by  an  engine  of  the  defendant,  and  the  plaintiff 
received  his  injuries.  The  court  (p.  22)  said:  "We  think 
the  plaintiff  was  chargeable  with  the  neglect  of  his  comrade. 
He  was  conscious  of  the  danger  and  apparently  made  no 
objection  or  effort  to  avoid  it.  He  was  engaged  in  a  common 
employment  with  McNally.  He  had  full  control  of  his  own 
actions,  and,  though  on  the  safe  track,  did  not  object  when, 
after  telling  McNally  to  turn  out,  they  turned  upon  the  dan- 
gerous track." 

In  BrickeJl  v.  N.  Y.  C.  cC  H.  R.  R.  R.  Co.,  120  K  Y.  290, 
the  plaintiff  had  paid  the  driver  of  a  single  horse  and  wagon 
to  carry  him  from  one  place  to  another,  and,  while  riding  and 
occupying  the  same  seat  with  the  driver,  sustained  injuries 
from  a  collision  between  the  wagon  and  an  engine  of  the 
defendant  at  a  highway  crossing  of  defendant's  road.  The 
court  (p.  293)  said:  "  The  rule  that  the  driver's  negligence 
may  not  be  imputed  to  the  plaintiff  should  have  no  application 
to  this  case.  Such  rule  is  only  applicable  to  cases  where  the 
relation  of  master  and  servant  or  principal  and  agent  does 
not  exist,  or  where  the  passenger  is  seated  away  from  the 
driver  or  is  separated  from  the  driver  by  an  enclosure  and  is 
without  opportunity  to  discover  danger  and  to  inform  the 
driver  of  it.  {Robinson  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  66 
K  Y.  11.) 


208  Xegligence, 

''  It  is  no  less  the  duty  of  the  passenger,  where  he  has  the 
opportunity  to  do  so,  than  of  the  driver,  to  learn  of  danger 
and  avoid  it  if  practicable. 

''  The  plaintiff  was  sitting  upon  the  seat  with  the  driver, 
with  the  same  knowledge  of  the  road,  the  crossing  and 
environments,  and  with  at  least  the  same,  if  not  better,  oppor- 
tunity of  discovering  dangers  that  the  driver  possessed,  and 
witliout  any  embarrassment  in  communicating  them  to  him. 

"  The  rule  in  such  ease  is  laid  down  in  Iloag  v.  N.  Y.  C. 
&  H.  E.  R.  R.  Co.  (Ill  X.  Y.  199),  where  husband  and  wife 
were  sitting  upon  the  same  seat  in  a  vehicle  driven  by  the  hus- 
band, and  both  were  killed  by  a  collision  at  a  crossing,  and  in 
an  action  brought  by  the  administratrix  of  the  wife  against 
the  railroad  company  it  was  held  '  that  she  had  no  right, 
because  her  husband  was  driving,  to  omit  some  reasonable 
and  prudent  effort  to  see  for  herself  that  the  crossing  was 
safe.'  " 

Imputation  of  negligence  to  persons  non  sui  juris. — 
''  In  actions  brought  by  or  in  behalf  of  children,  idiots,  luna- 
tics, or  other  persons  non  sui  juris,  for  injuries  to  which  the 
negligence  of  their  legal  custodians  contributed,  the  question 
has  arisen,  whether  or  not,  upon  the  theory  of  agency  or 
identity,  such  contributory  negligence  on  the  part  of  the  par- 
ent or  guardian  should  be  imputed  to  the  plaintiff  in  bar  of 
the  action.  Upon  this  question  the  courts  have  not  been  able 
to  agTee.  It  is  held  in  many  jurisdictions  in  this  country, 
that  such  negligence  is  justly  to  be  imputed  to  an  infant 
plaintiff",  wliile  in  others  it  is  strenuously  denied."  Beach  on 
Contributory  Xegligence  (3d  ed.),  §  116. 

Where  rule  prevails. —  "  For  one  or  the  other  reason,  or  no 
reason,  this  rule  of  imputed  negligenee  seems  to  be  at  present 
established  in  Xew  York,  Maine,  JVfassachusetts,  Delaware, 
Maryland,  Indiana,  Minnesota,  Kansas,  and  California." 
Shearman  &  Ecd.  on  Xeg.  (5th  ed.),  §  74. 

Where  rule  does  not  prevail. —  "The  better  rule,  that  in 
such  an  action,  by  or  in  behalf  of  an  infant,  the  negligence  of 


Asa 


Negligein^ce.  209 

parent  or  guardian  is  not  to  be  so  imputed,  prevails  in  Ala- 
bama, Georgia,  Connecticut,  Illinois,  Iowa,  Kansas,  Michi- 
gan, Mississippi,  Missouri,  Nebraska,  I^Tew  Jersey,  North 
Carolina,  Ohio,  Pennsylvania,  Tennessee,  Texas,  Virginia 
and  West  Virginia."  Beach  on  Contributory  Neg.  (3d  ed.), 
§  130. 

The  New  York  rule.—  In  New  York  it  is  maintained  that 
the  negligence  of  the  custodian  must  be  imputed  to  a  plaintiff 
non  sui  juris,  and  the  leading  authority  is  liartfield  v.  Roper ^ 
21  Wendell,  615.    In  that  case  a  child  about  two  years  of  ager|-**-*^ 
was  in  the  highway,  some  distance  from  home  and  unat-|xi.-*w«    *- 
tended,  when  it  was  run  over  by  the  horses  of  the  defendant,  _^^  ^^^^ 
who  failed  to  see  the  child  before  it  was  injured,  and  the  court 
(p.  618)  said:  "  Was  the  plaintiff  guilty  of  negligence  ?    His  *) 

counsel  seemed  to  think  he  made  a  complete  exception  to  the  a-**— ** 
general  rule  demanding  care  on  his  part,  by  reason  of  his  t^  ,.^.- 
extreme  infancy.  Is  this  indeed  so  ?  A  snow  path  in  the  * 
public  highway,  is  among  the  last  places  in  this  country  to  "^ 
which  such  a  small  child  should  be  allowed  to  resort,  unat- 
tended by  any  one  of  suitable  age  and  discretion.  The  cus- 
tody of  such  a  child  is  confided  by  law  to  its  parents,  or  to 
others  standing  in  their  place ;  and  it  is  absurd  to  imagine 
that  it  could  be  exposed  in  the  road,  as  this  child  was,  with- 
out gross  carelessness.  It  is  the  extreme  of  folly  even  to  turn 
domestic  animals  upon  the  common  highway.  To  allow  small 
children  to  resort  there  alone,  is  a  criminal  neglect.  It  is  true 
that  this  confers  no  right  upon  travelers  to  commit  a  volun- 
tai'y  injury  upon  either;  nor  does  it  warrant  gross  neglect; 
but  it  seems  to  me  that,  to  make  them  liable  for  any  thing 
short  of  that,  would  be  contrary  to  law.  The  child  has  a  right 
to  the  road  for  the  purposes  of  travel,  attended  by  a  proper 
escort.  But  at  the  tender  age  of  two  or  three  years,  and  even 
more,  the  infant  cannot  personally  exercise  that  degree  of 
discretion,  which  becomes  instinctive  at  an  advanced  age,  and 
for  which  the  law  must  make  him  responsible,  through  others, 
if  the  doctrine  of  mutual  care  between  the  parties  using  the 
road  is  to  be  enforced  at  all  in  his  case.  It  is  perfectly  well 
14 


210  Negligence. 

settled,  that,  if  the  party  injured  bj  a  collision  on  the  high- 
way has  drawn  the  mischief  upon  himself  by  his  own  neglect, 
ho  is  not  entitled  to  an  action,  even  though  he  be  lawfully  in 
the  highway  pursuing  his  travels,  Ratlibun  v.  Payne,  19 
^Yendell,  399,  Burclc  v.  N.  Y.  Dry  Dock  Company,  2  Hall, 
151,  which  can  scarcely  be  said  of  a  toppling  infant,  suffered 
by  his  guardians  to  be  there,  either  as  a  traveler  or  for  the 
purpose  of  pursuing  his  sports.  The  application  may  be 
harsh  when  made  to  small  children,  as  they  are  knoAvn  to 
have  no  personal  discretion,  common  humanity  is  alive  to 
their  protection;  but  they  are  not,  therefore,  exempt  from 
the  legal  rule,  when  they  bring  an  action  for  redress ;  and 
there  is  no  other  way  of  enforcing  it,  except  by  requiring  due 
care  at  the  hands  of  those  to  whom  the  law  and  the  necessity 
of  the  case  has  delegated  the  exercise  of  discretion.  An  infant 
is  not  sui  juris.  He  belongs  to  another,  to  whom  discretion 
in  the  care  of  his  person  is  exclusively  confided.  That  person 
is  keeper  and  agent  for  this  purpose;  and  in  respect  to  third 
persons,  his  act  must  be  deemed  that  of  the  infant ;  his  neg- 
lect, the  infant's  neglect." 

"  The  principle  of  this  case  [Hartfield  v.  Roper]  has  been 
since  its  determination  often  applied  by  the  courts  of  this 
State  to  analogous  cases,  and  must  now  be  regarded  as  the 
settled  law,  notwithstanding  a  somewhat  different  rule  pre- 
vails in  some  of  the  other  States."  Mangam  v.  Brooklyn 
R.  R.  Co.,  38  K  Y.  455,  457. 

Criticism  of  the  rule.—  "  The  rule  of  imputed  negligence, 
founded  upon  a  dictum  in  Hartfield  v.  Roper,  has  undoubt- 
edly been  affirmed  in  many  cases  in  New  York  courts  of 
original  jurisdiction ;  and  it  has  been  often  mentioned  by  the 
Court  of  Appeals  as  if  it  were  settled  law.  But  it  is  a  re- 
markable fact  that  the  question  has  never  been  squarely  pre- 
sented to  any  court  of  last  resort  in  New  York,  for  decision ; 
and  apparently  the  question  has  never  been  argued  there. 
.  .  .  The  main  question  is  entirely  open  to  review  in  the 
Court  of  Appeals.     And,  as  that  court  did  not  hesitate  to 


ISTegligence.  211 

overrule  a  decision  of  the  Supreme  Court,  on  a  point  of  com- 
mercial and  statutory  law,  wliicli  had  been  acted  upon  for 
thirty  years  without  question,  we  can  see  no  good  reason  why 
it  should  not  break  through  the  precedents  on  this  important 
question,  and  allow  it  to  be  argued  as  new,  in  accordance 
with  the  wise  policy  of  the  English  Court  of  Appeal,  in  over- 
ruling Thorogood  v.  Bryan,  after  it  had  stood  for  thirty- 
eight  years."  Shearman  &  Kedfield  on  Negligence  (5th  ed.), 
§75. 

Who  are  non  sui  juris. —  Idiots  and  lunatics  are  as  a  class 
non  sui  juris,  but  infants  as  a  class  may  not  be  said  to  be 
personally  irresponsible,  as  the  question  of  liability  in  tort 
depends  upon  capacity,  and  for  that  reason  is  difficult  of 
determination. 

"  In  Tucker  v.  N.  Y.  C.  &  H.  R.  R.  Co.  (124  K  Y.  308) 
it  was  held  that  the  question  at  what  age  an  infant's  respon- 
sibility for  negligence  may  be  presumed  to  commence  is  not 
one  of  fact,  but  of  law,  and  in  analogy  to  the  provision  of 
section  19  of  the  Penal  Code  to  the  effect  that  a  child  under 
the  age  of  twelve  years  would  be  presumed  to  be  incapable 
of  crime,  it  was  suggested  that  twelve  years  was  the  age  at 
which  the  presumption  of  capacity  to  appreciate  danger  and 
to  exercise  caution  should  commence.  The  presumption  in 
either  case,  that  is,  of  incapacity  below  the  age  of  twelve 
and  of  capacity  at  that  age,  may  of  course  be  overborne  by 
evidence.  But,  as  was  said  by  the  Court  of  Appeals  in  the 
recent  case  of  Zwach  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.  (160  ^^^^^  ^ 
N".  Y.  362,  365),  '  the  reasoning  of  the  court  in  the  case  of 
Tucker  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.  (124  K  Y.  308)  ^^»-^ 
is  to  the  effect  that  an  infant  under  the  age  of  twelve  years  v      . 

is  presumed  to  be  non  sui  juris  so  the  question  with  respect  X 

to  his  capacity  at  that  age  becomes  one  of  fact.     It  is  true  •'*J*^^ 
that  an  infant,  even  of  more  tender  years,  may  be  shown  to   ^5,i\,«^ 
be  sui  juris.     The  fact  must  in  such  cases  depend  upon  the 
capacity  and  intelligence  of  the  child,  and,  hence,  becomes v^Vr^CL  ^.^ 
a  question  for  the  consideration  of  the  jury  in  connection  S^  ^^j^   \ 


../<^' 


with  all  the  facts  and  circumstances  of  the  case.'     In  the 
present  state  of  the  law,  these  two  cases  must  be  regarded 
as  authority  for  the  proposition  that  the  legal  presumption 
of  non  sui  juris  lasts  until  the  infant  has  reached  the  age  of 
twelve  years,  especially  in  view  of  the  fact  that  no  authori- 
tative decision  exists  for  the  entertaining  of  a  contrary  pre-  ^^^^ 
sumption  at  an  earlier  age."    Hill  v.  BaUimore  £  New  York  ^^  ^p^ 
R.  Co.,  75  App.  Div.  325,  327-8.    See,  also,  Nagle  v.  A.  U. —    " 
B.  B.  Co.,  88  Pa.  St.  35. 


X^*'^**^! 


<v  Contributory  negligence:  burden  of  proof  on  plaintiff. — 

t;^^**-       "  It  is  a  fundamental  principle  in  the  law  of  this  state  that, 
-^  \S^       in  an  action  for  a  personal  injury  based  on  negligence  of  the 
^^^_Ji^         defendant,  the  absence  of  negligence  on  the  part  of  the  plain- 
tiff, contributing  to  the  injury,  must  be  affirmatively  shown 
^     .^js^  by  the  plaintiff  either  by  direct  proof  or  by  circumstances, 
>and  that  no  presumption  arises  from  the  mere  happening  of 
an  injury  and  proof  of  negligence  on  the  part  of  the  defend- 
ant, that  the  plaintiff  was  free  from  blame."    ]Yeston  v.  City 
of  Troy,  139  K  Y.  281,  282. 

"  It  is     .     .     .     contended  that  the  complaint  was  insuffi- 
cient because  it  novrhere  alleged  the  absence  of     .     .     .    con- 
^       tributory  negligence.      Such  separate  and  cliropt  nvprment  in 
"     the  pleading  was  imnecessary.     {Ilacl'ford  v.  N.  Y.  C.  B.  B. 
***"^'        Co.,  6  Lans.  381;  affirmed,  53  K  Y.  654.)     RubstMutiaUv 
-K^j^        that  allegation  is  always  involved  in  the  averment  that  the 
—    injury  set  out  was  occasioned  by  the  defendant's  negligence. 
^?^**^**^'  To  prove  that,  it  is  necessary  for  the  plaintiff  to  show,  and 
the  burden  is  upon  him  to  establish,  that  his  own  negligence 
did  not  cause  or  contribute  to  the  injury.     {Hale  v.  Smith, 
78  jSF.  Y.  480.)     In  the  multitude  of  cases  of  this  general 
character  we  know  of  none  which  requires  of  the  pleader 
any  independent  or  explicit  allegation  that  the  plaintiff  him- 
self was  without  fault."    Lee  v.  Troy  Citizens'  Gas  Light  Co., 
98  :N'.  Y.  115,  119. 

Contributory  negligence :  burden  of  proof  on  defendant. — 
Many  **  cases  hold  that  if  the  negligence  of  the  plaintiff  con- 


jITEGJui^NCE.  213 

ciirred  in  producing  tlie  injury  complained  of,  that  is  purely 
matter  of  defense,  and  hence  the  burden  of  proving  it  is 
upon  the  defendant.  This  is  the  view  taken  by  Judge  Duer 
in  Jolmson  v.  The  Hudson  River  R.  R.  Co.,  5  Duer,  21 ;  and 
that  able  judge  rested  his  opinion  mainly  on  two  grounds: 
1.  He  held  that  in  the  absence  of  proof  there  is  no  presump- 
tion that  the  person  injured  was  guilty  of  negligence  which 
contributed  to  the  injury,  any  more  than  there  is  a  like  pre- 
sumption that  he  whose  act  or  omission  caused  the  injury 
was  guilty  of  negli^once.  And  inasmuch  as  the  plaintiff 
must  prove  affirmatively  that  the  act  or  omission  of  the  de- 
fendant which  resulted  in  the  injury,  was  negligent,  before 
he  can  recover,  so  in  like  manner  the  defendant  must  prove 
affirmatively  that  the  act  or  omission  of  the  plaintiff  contrib- 
uted proximately  to  the  injury,  in  order  to  defeat  the  action 
on  that  ground.  2.  He  further  held  that  no  averment  is 
required  in  the  complaint  in  such  an  action  that  the  plaintiff, 
when  injured,  was  in  the  exercise  of  proper  care  and  caution 
to  avoid  the  injury;  and,  from  the  elementary  rule  that 
every  fact  is  necessary  to  be  averred  in  the  complaint  which 
the  plaintiff  is  bound  to  prove  in  order  to  maintain  his  action, 
he  draws  the  conclusion  that  the  plaintiff  ill  such  an  action 
is  not  bound  to  prove  in  the  first  instance  his  own  freedom 
from  contributory  fault ;  in  other  words,  that  the  07ms 
prohandl  is  not  upon  him  to  disprove  his  own  negligence, 
but  is  upon  the  defendant  to  prove  such  negligence. 

********* 

"  It  seems  to  us  that  the  reasons  in  favor  of  the  rule  which 
casts  the  burden  of  proof  in  such  cases  upon  the  defendant, 
are  the  stronger  and  better  reasons ;  and  that  such  rule  rests 
upon  sound  legal  principles,  and  ought  to  prevail  in  this 
state."    Hoijt  v.  City  of  Hudson,  41  Wis.  105,  110. 

Jurisdictions  placing  burden  of  proof  on  plaintiff. —  In 

the  following  jurisdictions  the  burden  of  proving  the  absence 
of  contributory  fault  rests  upon  the  plaintiff:  Connecticut, 
Illinois,  Indiana,  Iowa,  Louisiana,  Maine,  Massachusetts, 
Michigan,  Mississippi  and  New  York. 


214 


!N^EGLIGENCE. 


Jurisdictions  placing  burden  of  proof  on  defendant. —  In 
the  following  jurisdictions  tlie  burden  of  proof  as  regards 
contributory  fault  rests  upon  the  defendant:  Alabama, 
Arizona,  Arkansas,  California,  Colorado,  Delaware,  Florida, 
Georgia,  Idaho,  Kansas,  Kentucky,  ]\raryland,  Minnesota, 
Missouri,  Montana,  Nebraska,  New  Hampshire,  New  Jersey, 
North  Dakota,  Ohio,  Oregon,  Pennsylvania,  Khode  Island, 
South  Carolina,  South  Dakota,  Texas,  Vermont,  Virginia, 
Washington,  West  Virginia  and  Wisconsin. 

See  Shearman  &  Kedfield  on  Negligence  (5th  ed.), 
§§  107,  108,  and  notes. 


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INDEX. 


Abatement : 

(See  Death;  Nuisance;  Seduction.) 

Abuse  of  process: 

(See  Maucious   Fkosecution.) 

Actio  personalis  moritur   cum   persona:  ^^^<fo 

civil  death  not  included ^^ 

rule  at  common  law ^' 

rule  of.  modified  by  statute   ( England ) <53 

rule  of,  modified  by  statute   ( N.  Y. ) 39 

wrongs  to  property,  rights  or  interests   (N.  Y.) 41 

(See  Death.) 

Arrest: 

(See  False  Imprisonment.) 

Assault  and  battery: 

assault  defined    ^^ 

assault,  essential  elements ^* 

battery  defined    ^^ 

battery  includes  assault ^4 

consent !^' 

contact 'J^ 

force,  excessive,  right  of  recovery  for,  considered 82 

force  permitted,   when ^^ 

intention  in,  considered '* 

person,  defense  of °^ 

property,   defense  of ^  1 

property,  recapture  of 81 

provocation,  effect  of,  upon  damages 84 

retreat,  necessary  when 80 

security  of  person 73 

threats '  * 

Battery : 

(See  Assault  and  Battery.) 

Breach  of  promise  of  marriage: 

(See  Contract;  Seduction.) 

probable,  considered  in  false  imprisonment 93 

probable,  in  malicious  prosecution 143 

proximate,  defined    ^ 

Charitable  corporations: 

liability  of,   considered 34 

Common  carrier: 

care  to  be  exercised  by |^'^ 

contracts  exempting   for  negligence 1»9 

passenger,   duty  owing  to 5* 

^  [215] 


216  Index. 

Contract:  page. 

damages  for  breach  of  marriage  promise 10(i 

damages    for    breach    of    marriage    promise    accompanied    by 

seduction 107 

deceit,  complication  with 133 

marriage  promise,  broach  of,  accompanied  by  seduction 107 

negligence,   exemption   for 199 

tort   distinguished   from 3 

Contribution: 

joint  tort  feasors,  limitation  of  rule  relating  to 17 

joint  tort  feasors,  no  right  to 17 

joint  tort  feasors,  reason  for  rule  relating  to 17 

Conversion: 

action  for,  by  whom  maintained 173 

acts  not  implying  assertion  of  title 1G6 

asportation 1G7 

damages,   measure   of 174 

defined 165 

demand   and   refusal^   considered 174 

demand,  when  necessary 174 

dominion,  exercise  of 166 

dominion,   for  whom  exercised 166 

intention  in,  considered 165 

remedies 174 

requisites  to  maintain  action  for 172 

trespass   distinguished   from 168 

Corporations: 

liability   of,  general 28 

slander    by,    considered 29 

(See  Charitable  Corporations;  IvruNiciPAi  Corporations.) 

Crime : 

evidence  to  exclude  reasonable  doubt  in 4 

merger  doctrine  not  adopted  here 7 

merger  doctrine,   source  of 6 

tort  distinguished  from 4 

tort  merged  in    ( common   law ) 5 

tort  not   merged  in    ( statute ) 4 

Criminal  conversation: 

(See  Husband;  Wife.) 

Damage : 

allegation  and  proof  of,  when 8 

conversion 174 

deceit 138 

implied   in  action  for  death 49 

libel  and  slander,  allegation  and  proof  of Ill 

marriage  promise,  breach   of 106 

marriage  promise,  breach  of,  accompanied  by  seduction 107 

nuisance 189 

nuisance,  continuing   .• 182 

provocation  mitigates   84 

seduction,  in  action  for 101 

special,   in   defamation 115 

special,  what  constitutes 115 


Index.  217 

Damnum :                                                                                                 page. 
defined   2 

Damnum  absque  injuria: 

action   lies   not   for ' 

defined 7 

Death: 

abatement   of  action 51 

action  for,  at  common  law 37 

action  for,  by  statute    ( England) 39 

action  for,  N.  Y.  Code  Civ.  Pro 43 

aliens,  non-resident,  action  by 48 

civil,  not  within  rule  of  actio  personalis,  etc 39 

damage  implied    49 

distribution  of  damages  for 44 

double   liability,  not  allowed 44 

funeral    expenses    °" 

minority,  recovery  not  limited  to ^^ 

"  pecuniary  injuries  "  in  actions  for 48 

services,  loss  of,  included  in  "pecuniary  injuries,"  when 98 

services,  loss  of,  not  recoverable  in  instantaneous  death 97 

survival  of  action 52 

verdict  before,  action  survives 52 

Deceit: 

action   for,   nature   of 133 

artifice 136 

contract,   complication   with 133 

damage 138 

defined 1''3 

elements,    essential    134 

fact,   statement  of 134 

falsity,  knowledge  of 136 

fraud,    how   proved 136 

intention 136 

nature   of  wrong 132 

opinion,  statement  of 135 

representations,  to  whom  made 139 

scienter 136 

silence 136 

Defamation: 

(See  Libel  and  Slandeb. ) 
Detinue : 

action  for 171 

Duty: 

heads  of,  three i° 

Evidence: 

acquittal  in  malicious  prosecution 145 

conversion,   demand   and    refusal 1 '  4 

conviction  in  malicious  prosecution •  •  144 

crime,  to  exclude  reasonable  doubt  in 4 

defamation,   to  support   punitive  damages 129 

falsity   of   defamatory   matter 129 


218  Index. 

Evidence  —  Continued :  page. 

maliw   in    false   imprisonment -^    'J3 

reputation   in   defamation 112 

tort,  to  preponderate  in 4 

False  imprisonment: 

arrest  with   warrant 88 

arrest  without  warrant,  common  law 92 

arrest  without  warrant,  statute   (N.  Y.) 90 

complaint,  avennent  in 87 

defined 86 

elements  of,  essential   86 

freedom  of  person 85 

justification "'7 

malice   in,   considered 93 

malicious  prosecution  distinguished  from 156 

probable   cause,   considered 93 

process,  erroneous    89 

process,  void  and  irregular  distinguished 88 

termination  as  an  element,  considered 87 

Family  relations: 

action  at  law  lay  not  for  injury  involved  in 95 

per  quod  actions,  source  of 95 

(See  Husband;  Wife;  Parent;  Infant.) 

Fire: 

liability  for,  limited    (N.   Y.) 15 

recovery  for,  modified  by  statute    (England) 15 

roccA-ery   for,   at  common  law 15 

Fraud: 

(See  Deceit.) 

Government: 

(See   SOVEREIGNTT. ) 

Husband: 

crinimal   conversation,   action   for 108 

negligence  of  wife,  in  action  for  loss  of  services 100 

per  quod,  consortium  amisit,  source  of 95 

services,  loss  of,  and  of  society,  distinguished 99 

services,  loss  ol,  not  recoveraWe  in  instantaneous  death 97 

services  of  wife,  loss  of,  action  for 96 

wife  may  not  sue  for  injury  by 24 

Independent  contractor: 

(See  Master  and  Servant.) 

Infants: 

contracts,    protection    from 19 

contributory  negligence  of,  in  action  for  loss  of  services 100 

damages  in  action  for  seduction 101 

liability  of,  general 19 

liability  of,   when  contract   disaffirmed 20 

medical  expenses  in  action  for  loss  of  services 98 

negligence,   imputed  when 208 

negligence  of   ^-' 

non  sui  juris,  who  are 211 

parent  not  liable  for  injury  to 21 

parent  not  liable  for  injury  to,  why 21 


Index.  219 

Infants  —  Continued :  page. 

seduction,  action  for,  not  allowed  to  seduced  party 103 

seduction,  action  for,  theory  of 101 

seduction,  action   for,  when  allowed  to  seduced  party 104 

seduction  of,  when  action  for,  sustained 103 

services,  loss  of,  action  by  parent  for 95 

services,  loss  of,  in  action  for  death,  when  allowed 98 

services,  loss  of ^  not  recoverable  in  instantaneous  death 97 

services,  loss   of,   prospective 98 

Injuria: 

defined 2 

Injuria  sine  damno: 

action    lies   for ' 

defined  ' 

Injuries: 

law  recognizes  what  as * 

result  from   1 

to   person   and   property,  actions  for 45 

Intenticn : 

assault  and  battery,  considered  in '4 

considered  when   1^ 

conversion 1"^ 

deceit j^6 

libel  and  slander 119 

lunatic,   an  exception 22 

negligence,  considered  in 191 

Joint  tort  feasors: 

contribution,  limitation  of  rule  relating  to 17 

contribution  not  allowed 17 

contribution,  reason   for  rule  relating  to 17 

release   of   one^   effect  of 1** 

release  with  reservation,  eflfect  of 1^ 

Liatility: 

determined,  how   |^ 

intention,  when  considered 1^ 

Libel  and  slander: 

actionable  per  se,  when |^* 

averment,  what  is l^Jr 

colloquium 1^^ 

comment r^r 

comment  and  report  distinguished 1^1 

corporations,  slander  by 29 

criticism r!*! 

damage,  to  be  alleged  and  proved,  when Ill 

defamation,  defined    Ill 

distinction  between   Ill 

elements,  essential   11^ 

falsitv  of,  evidence  of   malice 129 

1  1 1 Q 

innuendo ^Z. 

intention •  •  • \Vt 

judicial  and  legislative  proceedings,  heading  in  report  of 127 

judicial  and  legislative   proceedings,  reports  of 127 


220  Index. 

Libel  and  slander  —  Continued:  pase, 

justification  to  be  as  broad  as  charge 123 

language,   interpretation   of 113 

libel,  dffined   110 

libel,  detined  by  statute   ( X.  Y. ) 110 

malice,  express,  a  question  of  fact - 130 

malice,  implied  and  express 128 

malice  implied  from  publication 118 

malice  in  case  of  absolute  privilege 131 

malice  in  report  of  judicial  and  legislative  proceedings 127 

malice  material  in  qualified  privilege 124 

malice  to  support    punitive   damages 129 

memory  of  dead,  maligned,  no  civil  action  for 110 

mitigation,   circumstances   in 123 

mitigation  extends  only  to  punitive  damages 124 

moral  duty  to  communicate 125 

press,  liberty  of 121 

privilege  a  question  of  law 130 

privilege,  absolute   when    131 

privilege  as  a  defense 124 

privilege,  qualified  when    124 

publication,  defined   Ill 

repetition   in   slander 116 

repetition  with  name  of  author 117 

republication   in  libel 116 

reputation,   defamation  of,   how  effected 110 

reputation,  good  and  bad,  admitted  when 112 

reputation  in   civil   actions 112 

reputation  in  criminal  actions 112 

reputation,  right  to 109 

slander,  defined    110 

special  damage  in  cases  actionable  per  se 115 

special  damage  in  cases  not  actionable  per  se 115 

special  damage  must  be  alleged,  when 115 

special  damage,  what  constitutes 115 

truth  as  defense  in  civil  action 123 

truth  as  defense  in  criminal  action 122 

unchasity,  imputation  of,  actionable  per  se  (N.  Y. ) 116 

Lunatics : 

intention,  when  considered 22 

liability   of,  general 21 

negligence  of 22 

Malfeasance: 

defined 1 

Malice : 

defamation :   absolute   privilege    131 

defamation:   express,  a  question  of  fact 130 

defamation :   express  and  implied 128 

defamation:   judicial  and  legislative  proceedings,  report  of....  127 

defamation,  qualified  privilege    124 

defamation :    to  support   punitive  damages 129 

fact,  a  question  of,  in  malicious  prosecution 149 

false   imprisonment,  considered  in 93 


Index.  221 

Malicious  prosecution:  ^^?a± 

belief  iu  guilt |*J 

cause,  probable,  a  question  of  law j*^ 

cause,  probable,  may  not  be  inferred |4^ 

cause,  probable,  what  is j^^ 

civil    actions    j_^ 

complaint  in  and  in  abuse  of  process l-'"^ 

counsel,  advice  of j'^' 

elements,  essential    j^y 

facts  to  support  accusation,  when  to  be  known 144 

false   imprisonment   distinguished  from 156 

injvmction,   temporary,   effect  of 148 

magistrate,  advice  of I'* ' 

malice,  a  question  of  fact 149 

malice  and  want  of  probable  cause  must  concur 148 

malice,  kind  required  to  be  proved 148 

malice,  may  be  inferred  when 148 

process,  abuse  of 150 

process,  abuse  of,   distinguished  from 152 

process,  abuse  ofj  termination  in 151 

termination 140 

termination,  acquittal  145 

termination,  appeal  from  judgment 142 

termination,  conviction 144 

termination,  nolle   proserjui    142 

termination,   proof  of,  why  required 141 

Married  women: 

(See  Wife.) 

Master  and  servant: 

common  carrier,  responsibility  to  passenger 5* 

employers'  liability  act    ( N.  Y.,) 67 

fellow-servant's  act,  master  not  liable  for 61 

fellow-servants,  rank  or  grade  immaterial 64 

fellow-servants,  under  control  of  one  master 65 

fellow-servants,  who  are "2 

independent  contractor,  employer  of,  not  liable    58 

independent  contractor,  employer  of,  when  liable    58 

independent  contractor,  test  of    59 

liability  of  master,  reason  for 57 

liability  of  master  to  third  persons 54 

master,  duty  of  servant   to 60 

master,  liability  of,  modification  of 61 

master,  liability  of,  reasons  for  modification  of 61 

negligence  of  rnaster  and  fellow-servant  concurring 66 

relation  of,  must  exist  when 56 

relation  of,  when  exists 54 

servant,  duty  of  master  to 59 

servant,  liability  of  to  third  persons 60 

vice-principal  not  fellow-servant 65 

Haxims: 

injuria  sine  damno ^ 

damnum  absque  injuria 7 

causa  proxima  noii  remota  spectatur 9 

sic  utere  tuo  ut  alicjium  non  laedas 8 

ubi  jus,  ibi  remedium • 


222  Index. 

Mental  suffering:  page. 

recovery  for,  in  negligence,  when 11 

recovery  for,  in  willful  tort   11 

Misfeasance : 

defined 1 

Municipal  corporations: 

duties  imposed  u])on 32 

liable  for  tort,  when -^3 

liable  for  tort,  when  not 32 

Negligence : 

care  by  infirm,  aged  and  young 204 

care,  liighest  degree  of l'-^*^ 

care  towards  infirm,  aged  and  young 204 

classification  of,  considered 192 

contributory,  burden  of  proof    (N.  Y.) 212 

contributory,  burden  of  proof  on  defendant,  where 212,  214 

contributory,  burden  of  proof  on  plaintiff,  where 213 

contributory,  defined 203 

contributory,  general  rule   203 

contributory,  in  actions  for  loss  of  services 100 

contributory,  reason  for  rule  of 204 

defined  .  .  .' 190 

duty  in  case  of 191 

duty,   standard   of )  194 

elements,  essential   190 

exemption  for,  by  contract 199 

fact,   a  questio)!  of,  when 199 

identification,  doctrine  of 204 

imputation  of,  does  not  prevail  where 208 

imputation  of,  in  N.  Y.  criticised 210 

imputation  of,  N.  Y.  rule 209 

imputation  of,  prevails  where 208 

infants  liable  for 22 

infants  non  sui  juris,  imputed  to 208 

infants,  who  are  non  sui  juris 211 

intention,  considered 191 

lunatics  liable  for 22 

man,   the   standard 194 

master  and  fellow-servant's  act  concurring 68 

mental  suffering,  recovery   for 11 

presumption  of    201 


Nervous  shock: 


(See  Mental,  Suffebing.) 


Nonfeasance: 

defined  1 

Nuisance: 

abatement 185 

abatement,  effect  of,  upon  action 186 


Ii;:dex.  223 


Nuisance  —  Continue  page, 

abatement,   theory  Jl 1S5 

classification  .  .  .  , 179 

continuing 182 

damages  in  a  continuing,  considered 182 

damages,  measure  of 189 

defined 175 

elevated  railroad  cases,  considered   (N.  Y. ) 183 

injunction  in  case  of,  considered 187 

parties  aggrieved  by 184 

parties  liable  for 184 

physical  discomfort,  standard  for 178 

private,  defined  180 

property,  injury  to,  and  physical  discomfort,  distinguished.  .  .  177 

public,   defined 179 

public  may  be  private,  when 181 

remedies 184 

trespass,  distinguished  from 176 

what  constitutes    176 

Parent : 

damages  in  action  for  seduction 101 

infant  may  not  recover  for  injury  by 21 

infant  may  not  recover  for  injury  by,  why 21 

medical  expenses  in  action  for  loss  of  services 96 

negligence  of  child,  in  action  for  loss  of  services 100 

per  quod  servitum  amisit,  source  of 95 

seduction,  action  for,  when  sustained 103 

seduction  of  daughter,  theory  of  action 101 

services,  loss  of,  in  action  for  death,  when  allowed 98 

services,  loss  of,  not  recoverable  in  instantaneous  death 97 

services  of  infant,  loss  of,  action  for 95 

services  of  infant,  loss  of,  prospective 96 

Passenger : 

carrier,  duty  owing  to 54 

provocation  by   55 

Presumption: 

negligence 201 

wife,  earnings  of   (N.  Y.) 24 

Principal: 

liable  for  tort  of  agents 53 

Process: 

(See  False  Imprisonment;  Maxjcidus  Prosecution.) 

Release : 

joint  tort  feasors,  of  one 16 

joint  tort  feasors,  of  one,  with  reservation 16 

Replevin : 

action  for,  at  common  law 168 

action  for,  regulated  by  statute   (N.  Y.) 171 

cepit,  in  the 169 


224  Index. 

Replevin  —  Continued :  paok. 

detinet,   in   th   169 

detinue  included  in 171 

trespass   distinguished   from 170 

Seduction: 

action  for,  not  allowed  to  seduced  party 103 

action  for,  theory  of lOi 

action  for,  when  allowed  to  seduced  party 104 

action  for,  when  sustained 103 

adult  daughter ,  103 

damages  for,  under  marriage  promise 107 

damages  in  action  for 101 

defined 101 

marriage  promise  accompanying 107 

survival  of  action   ( N.  Y. ) 103 

Servant : 

(See  Master  and  Sebvant. ) 

Sovereignty: 

action  against,  considered 31 

State: 

(See  Sovereignty.) 
Tort: 

contract  distinguished  from 3 

crime  distinguished  from 4 

crime  does  not  merge  with   ( statute) 4 

crime  merges  with    ( common  law) 5 

defining,   difficulty  of 1 

definitions 2 

evidence  to  preponderate  in 4 

liability  in,  classified 2 

merger  doctrine  not  adopted  here 7 

merger  doctrine,   source   of G 

Trespass: 

ah  initio   1^'^ 

action  for,  by  party  in  possession l-'^S 

asportation  of  goods 167 

committed  how   158 

conversion  distinguished  from 1G8 

defined 157 

duty  regarding  property 156 

elevated  railroad  cases,  considered   (N.  Y.) 183 

enclosure  unnecessary 159 

entry,  excusable  when IGl 

entry,  justifiable  when 159 

nuisance  distinguished  from 176 

persons,  trespass  to 164 

property,  personal,  trespass  to 164 

possession,  constructive    158 

veplevin   distinguished   from , 170 

rights  and  remedies  possessory 156 

title,  not  an  action  to  try 161 

waste   distinguished   from 163 


liVDEx.  225 

Waste: 

( See  Trespass.  ) 

Wife:  PAGE. 

action   against,    how   instituted 23 

action  by,  for  injury    ( N.  Y. ) 23 

contributory  negligence  of,  in  action  for  loss  of  services 100 

criminal  conversation,  action  for 108 

earnings,  presumption  in  favor  of  (N.  Y.) 24f 

husband  liable,  when    ( N.  Y. ) 23 

husband  not  liable  for  injury  to 24 

liability  of,  at  common  law 23 

liability  of  (N.  Y.) 23 

services,  loss  of,  action  for,  by  husband 96 

services,  loss  of,  and  of  society,  distinguished 99 

services,  loss  of,  not  recoverable  in  instantaneous  death 97 


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UNIVERSITY  OF  CAUFORNIA  LIBRARY 

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